Defences

Question 1

What are the available defences?

Answer 1

Consent
Making amends 
Truth
Honest opinion
Privilege
Public interest
Purpose of scientific/academic research

Question 2

s2 defamation act 1996

Answer 2

making amends - D can apologise and make an out of court settlement

Question 3

s2(1) Defamation Act 2013

Answer 3

D has a defence if they can prove the statement is ‘substantially true’

Question 4

what is meant by substantially true?

Answer 4

Not everything needs to be proven, just the sting of the libel

Question 5

Chase v News Group Newspapers Ltd

Answer 5

Not everything in the statement needs to be proven as true, just the sting of the libel

Question 6

Grobbelaar v News Group Newspapers Ltd

Answer 6

HL had to determine whether the ‘sting’ of the libel was the conspiracy to fix matches or if he had fixed the matches. Found the sting was the latter. Therefore, the statement would have been true were it not for other complications

Question 7

s3 Defamation Act 2013

Answer 7

3 requirements:

1) statement is one of opinion not fact
2) The facts on which the opinion is based are sufficiently identified. There will be no defence if the facts cannot be proven.
3) An honest person could have held that opinion on the basis of true facts

Question 8

What is the difference between facts and opinion?

Answer 8

facts are descriptive, opinion is evaluative

Question 9

Joseph v Philips

Answer 9

the facts on which the opinion is based must be identified - test in joseph v Philips held this could be generally or specifically

Question 10

Tse Wei Chun v Cheng

Answer 10

An honest person is different from a reasonable person (stage 3 of honest opinion)

the test is satisfied if: if the comment was one which could have been made by an honest person, however prejudiced, exaggerated or obstinate his views’

Question 11

s7 Defamation Act 2013

Answer 11

Defence of privilege - circumstances where people can speak freely without fear of defamation proceedings

Question 12

Types of privilege

Answer 12

Absolute
Qualified
Peer reviewed statement in a scientific or academic journal ect’ (s6 DA 2013)

Question 13

What is absolute privilege?

Answer 13

covers situations where it is crucial people have this protection. They are protected however malice or outrageous the statement is e.g. parliamentary proceedings, reports published by parliament, judicial proceedings

Question 14

What must D prove to raise the defence of qualified privilege?

Answer 14

a. They had a duty to tell the third party the statement
b. The third party had an interest in the statement
c. The statement must be made without malice
d. The D must have honestly believed the information in the statement was true, regardless of how unreasonably they reached this conclusion

Question 15

Watt v Longsdon

Answer 15

D received information that C (an employee) was behaving inappropriately with women. D informed C’s wife and the company director. The info was not true, and C sued for defamation. The communication of info to the chairman was privileged, however not to the wife. She may have had an interest, but he had not duty to tell her.

Question 16

Clarke v Molyneux

Answer 16

 Malice includes: intention to damage C’s reputation, if D does not believe the statement is true or does not care if it is true or not.

Question 17

Harrocks v Lowe

Answer 17

The D must have honestly believed the information in the statement was true, regardless of how unreasonably they reached this conclusion

Question 18

Classic example of qualified privilege:

Answer 18

duty of current employer to give the prospective employer a reference about an employee. Employer 1 has a duty to tell employer 2 who wants an honest opinion of the employee.

Spring v Guardian Assurance - can sue for pure economic loss if a referee negligently prepares a job statement

Question 19

S6 Defamation Act 2013

Answer 19

peer reviewed statement in a scientific or academic journal ect

Question 20

What must D prove to raise the defence of peer reviewed statement in a scientific or academic journal ect?

Answer 20

o The statement relates to a scientific/academic matter (s6(2))
o The statement has been independently peer reviewed by the editor and one or more experts (s6(3))
o HOWEVER, the defence will be defeated by malice (s6(6))

Question 21

S4 Defamation Act 2013

Answer 21

Publication on a matter of public interest
1) on a matter or public interest (subject matter) 2) D reasonably believed publishing the statement was in public interest (did the audience need to know)(s4(1))

NB: subjective and objective element. Codified old defence of Reynolds
Left deliberately wide to avoid Reynolds, but in reality still used, demonstrated in Economou

Question 22

Economou v de Freitas

Answer 22

. The issue was whether D reasonably believed the publication was in the public interest (it had already satisfied the first part of the test). It was held he did reasonably believe it was in the public’s interest to know. These are some of the factors determining this:

• Unique position – it was his daughter, he had witnessed some events first hand thus meaning the info was reliable
• He was challenging the CPS, he was targeting them not C, he deliberately avoided labelling C
• It was reasonable to expect the media reporting the story to carry out further investigations
• The tone written was reasonable and responsible.

Question 23

S1 Defamation Act 1996

Answer 23

Innocent defamation: D must show

• They were not the author, editor or publisher
• He took reasonable care in relation to publication
• Did not know, or had no reason to believe he contributed to the publication of a defamatory statement

Question 24

s10(1) Defamation Act 2013

Answer 24

protection for secondary publishers

Question 25

S5 Defamation Act 2013

Answer 25

Allows a defence to website operators if they can prove it wasn’t the operator that posted it. Defence will be defeated if:
o It was not possible for C to identify the (original) publisher
o C notified website operator of complaint
o Website operator failed to respond to notice of complaint

Question 26

What are the remedies available?

Answer 26

Damages are the primary remedy

Injunction to prohibit them publishing further defamatory statements

Question 27

What extra defences are available to republishers?

Answer 27

innocent defamation
s10(1) protection for secondary publishers
s5 - protections for website oeprators