#2284 - Defences To Defamation - Tort Law

Defences to defamation

Justification (or Truth)

• Is valid defence to show that defamatory statements are substantially true

  • Defamatory statements presumed to be untrue

    • Unless D raises evidence to rebut this presumption

  • C has not right to complain about true statements that harm his reputation

    • By publishing truth

      • D is merely ensuring C’s reputation is lowered to the appropriate level.

  • Is irrelevant whether statement published out of malice or not

    • Although exception to this is Rehabilitation of Offenders Act 1974 s.8(5)

      • Where C complains that D has published information about C’s spent convictions

        • Then D cannot rely on the defence of justification if publication due to malice.

  • London Artists v Littler [1969]:

    • Lord Denning:

      • Fair comment requires only the basic facts to be true

      • Those relying on Justification must also prove that comments and inferences drawn from facts are true as well.

• Defamation Act 1952 s.5

  • Justification defence won’t fail

    • by reason only that the truth of every charge is not proved

      • if the words not proved to be true don’t injure the reputation further than the charges are true.

    • E.g. D claims C has

      • 1. Stolen presents from children’s home

      • 2. Written on the wall that Santa doesn’t exist

      • 3. Has spelt Santa wrong

        • If D can prove the truth of the more serious charges (1 and 2)

          • Then fact he can’t prove 3 is irrelevant

            • Because it would not materially affect C’s reputation by not being true when concerned with the truth of the more serious allegations.

• Tools that D can employ to prove the charge are:

  • “Common sting”

    • D can use the evidence of similar activities to the one C has been accused of to show that his allegations have some grounding

      • Although C can just sue on a specific matter

        • In which case, D cannot raise common sting.

  • Civil Evidence Act 1968 s.13

    • Where criminal offence alleged, D only needs to prove conviction, not whether conviction right or not.

Fair Comment

• Here D does not have to show truth

  • But that D has exercised his right to criticise C

• Has three requirements:

  • Made in the public interest

    • London Artists v Littler [1969]:

      • Lord Denning:

        • This need not be interpreted by Judge narrowly

          • All you have to show is that it would be a matter that affects people at large and they might take a legitimate interest/concern in it.

    • Giliker: Is not what interests the public

      • But what the Judge thinks is in the public’s interest to know

  • Must be comment

    • On a given set of (true) facts

      • D is entitled to make a comment about them

        • Then D does not have to prove the comment itself is true, but only fair.

        • Naturally, D can’t make up facts to then comment on them.

      • Lord Denning in London Artists v Littler [1969]:

        • Need to get basic facts correct and accurate

          • These are the things that go to the pith and substance of the matter

            • From which a comment can be made.

    • Have to indicate which facts you’re referring to though

      • Telnikoff v Matusevitch [1992]: Letter published commenting on previous article in same paper, suggesting original author was racist.

      • Lord Keith (maj):

        • Comments published about a previous article must be treated in isolation

          • People who have not read article could read letter

            • And therefore would draw opinions on author from letter rather than letter and article

        • Writer, though doesn’t have to spell put all the facts of the article again

          • Does have to state the facts that he is commenting on

            • And not just state his comments baldly as if they are fact.

      • Lord Ackner (dis):

        • Ability of D to comment

          • should not depend on whether reader is aware of the material being commented on.

        • Should be sufficient for him to have identified the publication on which he is commenting,

          • without having to enable readers to judge for themselves whether they agree or not.

        • Otherwise you need to give the entire article again

          • And this would curtail an important manner of free speech by placing massive burden on newspaper editors.

      • Oiliphant:

        • Survey has shown that newspapers think most risky part of their paper to litigation is the letters page owing to majority judgement.

    • But need not prove as truth all the facts you’re commenting on

      • Defamation Act 1952 s.6:

        • Defence shall not fail as long as expression of opinion is fair comment on the evidence of the proved truthful statements.

  • Must be Fair and Honest

    • Reynolds v Times Newspapers [2001]:

    • Judge has to decide whether hypothetical person could honestly draw the conclusion of the commentator on assumption he knew the facts accurately stated in the article.

      • C proving malice on the part of D will normally defeat this defence

        • Although Lord Nicholls in Cheng v Tse Wai Chun [2001]:

          • As long as D honestly believes the truth of his comment

            • Regardless of his motive for publishing it

              • Then the court will not find “malice” and the defence will not be defeated.

        • And Lord Keith in Telnikoff v Matusevitch [1992]:

          • But up to C to prove malice, not up to D to prove honesty of comment.

Privilege

• Absolute Privilege

  • This covers statements made in Parliament, in court and by certain officers of state

    • Statements made in Parliament

      • Article 9 of Bill of Rights 1689 says that MPs speaking within Parliament cannot be impeached or questioned.

        • This preserves Parliamentary autonomy

        • And prevents courts from inquring into Parliamentary business.

      • Is a mixed blessing

        • Although C can’t rely on Parliamentary statements for defamation

          • But often MPs can’t bring their own claim because Parliamentary privilege doesn’t allow D to mount an effective defence.

      • Defamation Act 1996 s.13:

        • Allows MPs to waive Parliamentary privilege to bring their own claims as they wish.

    • Judicial Proceedings

      • All written and oral statements made within a trial or in preparation for a trial are given absolute privilege

        • E.g. Judges, counsel, the parties, witnesses and jury

      • Giliker: might be abused, but up to the Judge to regulate conduct in court.

      • Defamation Act 1996 s.14

        • Also includes all fair and accurate and “contemporaneous” Law Reports

          • Thus Newspaper can report proceedings of a case without fear of defamation.

          • Has to be as soon as practicable.

    • Communication between certain officers of State

• Qualified Privilege

  • At Common Law

    • Two requirements

      • X must have a duty or interest in communicating with Y (whether legal, moral or social)

      • AND Y must have corresponding interest or duty in receiving the information in question

        • If this is met, then as long as the statements is not made in malice

          • Then qualified privilege will exist.

    • Meant to protect people who have a duty to communicate and need to do so without fear of litigation

      • E.g. Spring v Guardian Insurance [1995]:

        • Old employer has social duty to communicate reference to Y

        • New employer has interest in receiving that reference

          • Therefore reference is protected by qualified privilege.

            • And will only be defeated by proof of malice.

    • What is a legal, moral or social duty?

      • Lindley LJ in Stuart v Bell:

        • Question of what this is is up to the Judge

          • Generally is objective to what the Judge believes to be a duty recognised by English people of ordinary intelligence and moral principle.

            • While not necessarily being enforceable by Law.

      • Giliker: so all in all, is a bit vague.

    • What is an interest?

      • Court interprets this broadly – includes any financial or business interests

        • Objective test is once again applied by the Judge.

    • Responsible Journalism -Reynolds v Times Newspapers [2001]:

      • Lord Hope:

        • No party is privileged to write defamatory material

          • Only the occasion itself may be privileged as it is in the public interest.

        • Problem with creating a general rule is that it can mean law is applied to rigidly,

          • and competing interests of privacy and freedom of speech are not equally weighed up in each circumstance.

        • Qualified privilege should not be given to a category where the privilege is at risk of becoming, in practice, absolute.

      • Lord Steyn (dis):

        • There is a qualified privilege of political free speech

          • So although politicians need to have their reputations protected

            • Their job means that they will be held to closer political scrutiny

          • Need for open political discussion outweighs their need for protection of reputation.

            • Press should therefore be accorded qualified privilege as a matter of course.

      • Lord Nicholls:

        • Approach should be flexible – take into account number of factors (more than the ones listed here)

          • Seriousness of allegation and tone of article

          • Source (and checking of facts)

          • Whether public concern

          • Urgency of the matter

          • Whether C’s side of the story has also been told or comment from C has been sought.

            • Courts thus weigh up competing interests case by case

              • Only if Journalists fill requirements should they get qualified privilege

      • Giliker: approach allows flexibility and discretion on facts of case

        • But also leads to uncertainty.

    • Jameel v Wall Street Journal Europe SPRL (No.3) [2006]:

      • Lord Bingham:

        • Lord Nicholls in Reynolds, extended ordinary duty/interest test:

          • Journalists would be granted qualified privilege

            • Where proof of such steps responsible journalists would take to try and ensure veracity of facts.

      • Lord Scott (affirming CoA):

        • Public in democracy interested in the promotion of a free and vigorous press to keep the public informed (not misinformed)

          • Corresponding duty on journalist (and editor) is to play his proper role in discharging that function.

        • Thus his...