Defences to a defamation claim

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.

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What are the possible defences?

In order for a claimant to be successful in a defamation claim, they need to prove that the following has occurred:

• A defamatory statement was made meaning that the general public would think worse of the claimant because of this statement.
• The claimant is identified or referred to in the statement.
• The statement is published to a third party.

However, even where this can be proved, a defendant has a range of defences that may apply. Here we look at the main defences.

Truth

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.

Honest opinion

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:

1. The statement was one of opinion rather than an assertion that it is a fact.
2. The statement indicated the basis of the opinion.
3. The opinion must be one that an honest person could have held because of any fact that existed at the time the statement was published or a privileged statement published before the statement complained of.

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.

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:

1. The statement was on a matter of public interest. Here the court should take into account whether the defendant failed to take steps to verify the truth of the sThe defendant reasonably believed that publishing the statement was in the public interest. Here the court needs to make allowances for editorial judgement where appropriate.

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.

Privilege

There are two forms of privilege:

• Absolute privilege, which is a complete defence. This is available in relation to statements made in Parliament or Court. It is recognised that statements made in these forums could fulfil all the requirements of a defamatory statement but in these settings a successful claim will not be possible.
• Qualified privilege, which arises where the person making the statement has an interest or duty (legal, social or moral) to make it to the third party. There are two types:

1. Statutory qualified privilege
2. Common law qualified privilege (which previously included the Reynolds defence discussed above).

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.

Innocent dissemination

This defence applies where the defendant can show that they:

• Are not the author, editor or publisher of the statement.
• Took reasonable care in relation to the publication.
• Did not know and had no reason to believe that what they did caused or contributed to the publication of the defamatory statement.

The court will take into account:

• How responsible the defendant was for the content of the statement.
• The nature and circumstances surrounding the publication. 
• The previous conduct of the author, editor or publisher.

Website operators

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:

• It is not possible for the claimant to identify the person that posted the statement (in order to bring proceedings against him).
• The claimant notified the operator in relation to their complaint about the statement.
• The operator failed to respond to being notified about the complaint. 

The defence is also defeated if the operator acted with malice.