Defamation - Defences - Truth and Honest Belief

Question 1

What are the five potential defences for actions of defamation?

Answer 1

1. Truth
2. Honest Opinion
3. Privilege
4. Offer of amends
5. Innocent Dissemination

Question 2

What is the defence of truth to an action of defamation?

Answer 2

Essentially, a defamatory imputation is presumed to be false - if the imputation is in fact found to be true this will provide a defence to the action for defamation - the burden of proving the imputation was substantially true rests, however, on the Defendant.

Question 3

What are the two elements to the defence of truth?

Answer 3

1. The imputation was one of fact

2. The imputation must be substantially true

Question 4

What provides the authority for truth as a defence for defamation?

Answer 4

s2(1) of the Defamation Act 2013

Question 5

Must the Defendant have knowledge of all the facts he seeks to rely upon to establish the truth of his statement, at the time of the imputation?

Answer 5

No, the Defendant is entitled to plead any fact whether or not it was known to him when he made the statement in order to show that the statement was substantially true.

Question 6

At what point must the statement made be true to fall under the defence of truth?

Answer 6

The statement must be true at the time of publication - as shown by Ma v St George’s Healthcare NHS Trust.

Question 7

Does every word of an imputation need to be true in order to allow for the defence of truth?

Answer 7

No, not every word of the imputation need be true, so long as it is substantially true - this was demonstrated by the case of Alexander v North Eastern Railway.

Question 8

What are the details and findings of the Alexander v North Eastern Railway Case?

Answer 8

The claimant was threatened with imprisonment for 14 days if he failed to pay fines for unpaid train tickets.
The defendant put notices up in stations stating that the defendant had been imprisoned for 3 weeks for failing to pay for tickets. The claimant argued that this was defamatory because it exaggerated the punishment. The notices were not held to be defamatory as they were substantially true (if not every word).

Question 9

Does the claimant have to prove a defamatory statement to be untrue to win a defamation case?

Answer 9

No, the claimant may win the case if the defendant cannot provide enough evidence to demonstrate that it is true.

Question 10

What are the potential consequences of attempting to win a defamation case while knowing the relevant imputation to be true?

Answer 10

This is a risky strategy which may come back to bite the claimant and damage their reputation further - e.g. in the case of Jeffrey Archer.

Question 11

How did the case involving Jeffrey Archer illustrate the risk with banking on the defendants inability to prove truth?

Answer 11

Archer, sued a newspaper for allegations that he had paid money to a prostitute. He won his defamation claim because the newspaper did not have enough evidence to back up the claim. Later more evidence emerged that Archer had paid a prostitute, and he was later convicted of perjury for lying in the original defamation trial.

Question 12

What provides the authority for the honest opinion defence to defamation?

Answer 12

S3 of the Defamation Act 2013.

Question 13

What are the four key elements of the honest opinion defence for defamation?

Answer 13

1. The statement was one of opinion (s3(2));
2. The statement indicated, either generally or specifically, the basis of that opinion (s3(3));
3. An honest person could have held the opinion on the basis of either any fact existing at the time the statement was published, or anything asserted to be a fact in a privileged statement (s3(4)); and
4. The defendant held the opinion expressed (s3(5))

Question 14

What is the difference between an opinion and a fact?

Answer 14

The simplest answer is that an opinion is evaluative whereas facts are descriptive. Opinions are based on a person’s values and preferences.

Question 15

Which case illustrated the difficulty of distinguishing opinions and facts?

Answer 15

British Chiropractic Association v Singh

Question 16

What is meant by the requirement that the statement indicates either generally or specifically the basis of the opinion?

Answer 16

This means that the defendant’s opinion must state, explicitly or implicitly, the basis of that opinion. This need only be in general terms, and does not need to be sufficient for the reader to be able to form their own judgement on the opinion.

Question 17

Which case illustrates the requirement that the statement indicates the basis of the opinion?

Answer 17

Joseph v Spiller

Question 18

What are the details of the Joseph v Spiller Case?

Answer 18

The claimants were musicians and the defendants their booking agents. The claimant’s signed a re-engagement clause with the defendants but later booked another venue without the defendant’s services. The claimants emailed the defendant stating that the contract ‘did not hold water in legal terms’. The defendants later quoted the claimant as saying ‘contracts’ hold no water. The claimants sued for defamation.

Question 19

What are the findings of the Joseph v Spiller Case?

Answer 19

It was held that a comment must explicitly or implicitly indicate, at least in general terms, the facts on which it is based. The defendant alleged that the words used in the email displayed a contempt for contracts and this was the basis of the comment made.

Question 20

What is meant by the requirement that the defendant must hold the opinion expressed, as referred to by s3(5) of the Defamation Act 2013?

Answer 20

The defendant need not prove that all the facts on which his opinion is based are true, just enough to make it possible for an honest person to hold the opinion in question.

Question 21

What is a requirement of the defendant seeking to demonstrate that they held the opinion expressed?

Answer 21

To establish this it is vital that the defendant was aware of the facts at the time that the opinion was published - as shown by Lowe v Associated Newspapers.

Question 22

Where does the burden of proof regarding whether an opinion is honestly held lie?

Answer 22

The burden of proving that the Defendant did not honestly hold the opinion will fall on the Claimant.