Lecture 3- Defamation Part 2- Defences and Remedies lectures 1, 2, 3 & 4 Flashcards
what are is the procedure for defamation
in depth
- C brings an action for a statement they feel has met the threshold for defamation
- Demonstrates the statement has been published, referes to claimant, is defamatory in nature and has caused them serious harm
- Pre-trial hearings a key element of the process to asses meaning of the words and level of harm inflicyed
- If C establishes the words were defamatory, there is a presumption that the statement was false
- Burden of proof show switches to D to demonstrate why C’s claim for reputational damage should not succeed
- An Array of potential defences- 2013 Act has made key changes
Defences to a claim for defeamation
in 6 bullet points
↳ Truth (previoulsy ‘justification’)- FACTS
↳Honest opion (previously ‘fair comment’)- OPINION
↳Privilege
* Absolute
* qualified
↳ Publication on a matter of public interest (previously ‘Rrynolds privilege)
↳Innocent dissemation
↳offer of amends
Defences: Truth (justification)
- if the publication is defamatory, the legal presumption is that the statement is false, so the burden of proof is on D
- Previous common law defences of ‘justification’ - McPherson v. Daniels [1829] 10 B. & C, 263’ :
↳’the law will not permit a man to recover damages in respect of an injury to a character which he does not or ought not to posses’ - Now codified in s 2 Defamation Act 2013 as ‘truth’
- Truth is an absolute defence, irrespective if the intention of the person who published the statement
- if the statement was false, lack of malicious intention is also irrelevant- does not give D a defence
- If the statement was false, lack of malicious intention is also irrelevant - does not give D a defence
- litigation problem: truth must be proven on the basis of evidenec - witness testimony and documentary evidence may be difficult to adduce
What is substantial truth?
- Some leeway was always permitted undercommon law
‘English law is generally able to accommodate the policy factors underlying the Article 10 jurisprudence by means of established common law principles; for example that a defamatory allegation need only be proved, on a balance of probabilities, to be substantially true. The courtshould not be too literal in its approach or insistupon proof of every detail where it is not essentialto the sting of the article’: Turcu v. News GroupNewspapers [2005] EWHC 799 (per Eady J., [109])
- Section 5 Defamation Act 1952: ‘a defence of justification shall not fail by reason only that thetruth of every charge is not proved if the words not proved to be true do not materially injure the plaintiff’s reputation having regard to the truth ofthe remaining charges
what is truth and witness
- First:Judge must avoid sterotyping especially in sexual offences allegations: evidence of how a victim reacts is not admissible in UK (unlike US)
- Second: judge must bear in mind ‘the fallibility ofhuman memory’: case law indicates memories fade, witnesses have powerful biases and a stakein the outcome and want to create a good impression
- Third: ‘a witness’s demeanour when giving evidence is not a reliable guide - and in fact is the least reliable guide - to whether their evidence is accurate. In short, there can be nervous truth-tellers, and confident liars’ (per [253])
- Held – allegation of rape was not credibl
what is honest opinion
- A common law defence previously known as ‘Fair Comment’ –to protect editorialising, columnists and literary/art critics
- Designed to overcome the common law presumption of malice
- A complete defence to defamation, albeit one that had become unwieldy due to conflicting case-law and public interest aspects
- An expression of a personal opinion, not an assertion of fact –but must demonstrate the basis on which that opinion was held
- Litigation issue: C will try to demonstrate that the words arestated as a fact, not an opinion, to force D to rely on truth orpublic interest
‘The comment must, however, identify at least in general termswhat it is that has led the commentator to make the comment, sothat the reader can understand what the comment is about andthe commentator can, if challenged, explain by giving particularsof the subject matter of his comment why he expressed the viewsthat he did. A fair balance must be struck between allowing a criticthe freedom to express himself as he will and requiring him toidentify to his readers why it is that he is making the criticism’Spiller v. Joseph [2010] UKSC 53 (per Lord Phillips, [104])
- SC highlighted this area was ripe for reform
what are the conditions for a section 3 defence
↳It is an opinion (s 3(1))
↳The publication indicates the basis of the opinion (s3(2))
↳An honest person could have held that opinion:
* either on the basis of a fact at the time
* Or on the basis of a fact in a privileged statement (s 3(4))
↳ Author genuinely held that opinion (s 3(5))
↳Or if it is the publisher defending, they thought it was genuinely held (s 3(6))
↳No longer has to be a comment in the public interest– but still has to be expressed as an opinion, not afact, and clearly state the basis for it
↳Previously D had to be ‘fair’ – now must meet objective test for an ‘honest person’
how to know if it is a fact or an opinion
- Explanatory Notes: ‘the statement must be recognisable ascomment as distinct from an imputation of fact. It is implicit …that the assessment is on the basis of how the ordinary personwould understand it. As an inference of fact is a form ofopinion, this would be encompassed by the defence’
- Butt v. SS Home Department [2019] EWCA Civ: ‘ The ultimatedeterminant then is how the statement would strike theordinary reasonable reader … that is, whether the statement isdiscernably comment (to such a reader)’ (per Sharp LJ [39])
- Broad interpretation: government press release was acomment
- Case settled in 2021 with large damages, as his name waserroneously printed in the press releas
what is absolute privilege
- Some statements are covered by privilege and are therefor not capable of being defamatory
- Extensive common law heritage, now covered under section 7
- Absolute privilege: anything said in the course of parliamanetary or judicial proceedings is immune from a defamation action
- Used by MPs to overcome absurd libel threats
- Broadly construed: applied to a range of judicial bodies
- McGettigan v. Mannock Holdings [2023] NIKB 90- complaint to LSNI was covered by AP
What is qualified privilege: Common law
- Provides a defence in certain situations, contingent on a lack of malice from D
- Reciprocal duty/interest – common law position
- A duty to communicate the information
- An interest in receiving the information
- An absence of malice in imparting the information
- ‘The person who makes a communication has an interest or a duty, legal social or moral, to makeit to the person to whom it is made, and the person to whom it is made has a corresponding interest or duty to receive it. This reciprocity isessential’: Adam v. Ward [1917] AC 309, (perLord Atkinson, 334)
- Applies primarily to job references, complaints,giving police information
What is qualified privilege: statuatory protection
- Matters listed in Schedule 1 Defamation Act 1996
- Part 1: Fair and accurate reports ofthe legislature; of courts; government inquiries; internationalorganisations held in public etc.
- Part II: ‘privilege subject toexplanation or contradiction’ –public meetings and sittings;company general meetings etc
