Defences Flashcards
What are the available defences?
Consent Making amends Truth Honest opinion Privilege Public interest Purpose of scientific/academic research
s2 defamation act 1996
making amends - D can apologise and make an out of court settlement
s2(1) Defamation Act 2013
D has a defence if they can prove the statement is ‘substantially true’
what is meant by substantially true?
Not everything needs to be proven, just the sting of the libel
Chase v News Group Newspapers Ltd
Not everything in the statement needs to be proven as true, just the sting of the libel
Grobbelaar v News Group Newspapers Ltd
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
s3 Defamation Act 2013
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
What is the difference between facts and opinion?
facts are descriptive, opinion is evaluative
Joseph v Philips
the facts on which the opinion is based must be identified - test in joseph v Philips held this could be generally or specifically
Tse Wei Chun v Cheng
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’
s7 Defamation Act 2013
Defence of privilege - circumstances where people can speak freely without fear of defamation proceedings
Types of privilege
Absolute
Qualified
Peer reviewed statement in a scientific or academic journal ect’ (s6 DA 2013)
What is absolute privilege?
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
What must D prove to raise the defence of qualified privilege?
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
Watt v Longsdon
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.
Clarke v Molyneux
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.
Harrocks v Lowe
The D must have honestly believed the information in the statement was true, regardless of how unreasonably they reached this conclusion
Classic example of qualified privilege:
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
S6 Defamation Act 2013
peer reviewed statement in a scientific or academic journal ect
What must D prove to raise the defence of peer reviewed statement in a scientific or academic journal ect?
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))
S4 Defamation Act 2013
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
Economou v de Freitas
. 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.
S1 Defamation Act 1996
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
s10(1) Defamation Act 2013
protection for secondary publishers
S5 Defamation Act 2013
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
What are the remedies available?
Damages are the primary remedy
Injunction to prohibit them publishing further defamatory statements
What extra defences are available to republishers?
innocent defamation
s10(1) protection for secondary publishers
s5 - protections for website oeprators
