Defemation Part 3 Flashcards
Defences for defamation (7)
Truth Honest opinion PI Absolute privilege Qualified privilege Accord and satisfaction Offer of amends
What is truth defence?
In 2013 replaced common law defence of justification
Is most difficult defence to argue
Requirement for truth defence to succeed is that the publisher must prove that what was published is “substantially true on the balance of probabilities”
Judge decides which version of events is likely to be true
What is the sting?
Sting is part of defamatory statement that people are most likely to remember - for example cheating on wife, being a hypocrite etc
What happens if more than one defamatory statement is published?
Imputation (more than one defamatory statement) is published then must be able to prove that allegation that has most potential to cause reputational damage to the claimant
So if publisher proves most serious allegation is true, they can’t lose
What must publishers consider about the truth defence
How expensive it will be and also how difficult it is to prove
Why are the media so reluctant to fight def cases
The difficultly in proving the statement
The burden of proof is on publisher to prove the statement is “substantially true”
Must prove obvious, but also prove inference or innuendo
Other reasons why media reluctant to fight Defemation cases
Witnesses may be reluctant to give evidence to help media
Passage of time, difficult to trace witnesses, memories fade
Judges can be very unpredictable in damages they award - damages could be higher than settlement agreed - legal costs also
What can be used as evidence in truth cases?
Witness statement
Interviews
Audio recordings
Video footage
CCTV
Records from official sources eg marriage certificates
Recorded telephone calls
What section does honest opinion fall under?
Section 3 of Defemation Act 2013
What is honest opinion defence?
Used to cover reviews, television programmes, exhibitions, opinions etc
What are the requirements for the honest opinion defence?
1) comments must be the honestly held opinion of person making it
2) Must be recognisable as an opinion rather than fact
3) Must be based on a probably true fact or privileged material
4) Author must explicitly or implicitly indicate what the info is based on
5) Published with no malice and recognised as an opinion
What does the honest opinion defence not cover?
It does not cover assertions of fact (they just be covered by another defence)
What case study can help you remember Honest Opinion
Sir Richard Branson case
Sued Evening Standard writer Tom Bower over pierce which said his bid to run National lottery was financially motivated
Branson lost
Court decided piece was based on honestly held opinions and others might share that
What is David Soul case?
David Soul sued Mirror for review on play he was in
Critic Matt Wright
His piece said worst West end show I’ve ever seen
Wright never went to see it, he sent a freelancer, therefore honest opinion wasn’t upheld as he had not seen the play
