The Defamation Act 2013 allows a party to bring a claim in relation to a defamatory statement, which is a published untrue statement that refers to a person and is harmful or likely to be harmful to the reputation of that person. There are several possible defences to a claim of defamation that a defendant may be able to use to prove that their statement did not break the law.
In order for a claimant to be successful in a defamation claim, they need to prove that the following has occurred:
However, even where this can be proved, a defendant has a range of defences that may apply. Here we look at the main defences.
The defence of truth replaces the previous defence of justification and is a complete defence. The defendant has to show that what they have alleged is substantially true. The assumption is that the defamatory statement is false, so it will be a matter for the defendant to prove otherwise based on the balance of probabilities.
It is not necessary to prove that every detail is true- just the main part of the allegation. So it is possible to use this defence even if part of the statement is untrue (so long as this is not the part that would adversely impact the claimant’s reputation). It does not matter if there was malice in relation to the statement- this defence will still be valid.
Again the Defamation Act 2013 replaced the fair comment defence with honest opinion. In order to succeed with this defence, it must be shown by the defendant that the following are met:
This defence will fail where the claimant can show that the defendant did not hold this opinion. There is no longer the requirement for the opinion to be on a matter of public interest.
The publication on a matter of public interest defence replaces the previous qualified privilege defence (known as the Reynolds defence). The defendant has to prove that:
The court needs to consider all the circumstances in the case in deciding whether these criteria have been met. It does not matter whether the statement is a fact or opinion.
There are two forms of privilege:
The Defamation Act 2013 also offers protection to peer-reviewed statements made by scientists and academics in peer-reviewed journals. These are regarded as privileged so long as various conditions are met.
This defence applies where the defendant can show that they:
The court will take into account:
A website operator will have a defence in relation to a statement that was posted on their website if they can show that it was not them that posted the statement. This defence is defeated if the following apply:
The defence is also defeated if the operator acted with malice.
The information on this website is intended as a guide and does not constitute legal advice. Vardags do not accept liability for any errors in the information on this website, nor any losses stemming from reliance upon the statements made herein. All articles and pages aim to reflect the legal position at time they were published, and may have been rendered obsolete by subsequent developments in the law. Should you require specialist advice, tailored to your situation, please see how Vardags can help you.