14. Defences to defamation

Defences to Defamation

The defence of justification: Justification, or truth, provides a complete defence to an action for libel or slander. The law presumes that a defamatory statement is false, which places the burden of proof entirely on the defendant to establish that the words are true in substance. The claimant does not need to show that the statement was a lie.

Substantial truth: A defendant does not need to prove the literal truth of every single word, provided the underlying defamatory sting is substantially true. Minor inaccuracies in detail will not ruin the defence. In Alexander v North Eastern Railway Co, the defence of justification succeeded because the statement was not sufficiently inaccurate to defeat the defence.

Fair Comment

Protecting public discussion: Fair comment exists to protect freedom of speech by allowing people to express honest opinions on matters of legitimate public concern. Whether a topic is a matter of public interest is a question of law for the judge. It generally covers the conduct of public officials, state institutions, and works of art or literature offered for public appraisal.

Public interest defined: In London Artists Ltd v Littler, the trial judge initially held that the defence failed because the issue did not concern the public interest. On appeal, Lord Denning explained that whenever a matter affects people at large so that they may be legitimately interested in or concerned at what is happening, it becomes a matter of public interest on which everyone is entitled to comment fairly.

Opinion versus fact: To rely on fair comment, the words must appear on their face to be an expression of opinion rather than an assertion of fact. If an allegation is presented as hard fact, the defendant cannot plead fair comment and must rely on justification instead. In Kemsley v Foot, the defence was held to be available because the words implied certain conduct and commented on that conduct, pointing clearly to the conduct of the press as the underlying subject. See also Telnikoff v Matusevitch.

Underlying factual basis: A comment must normally be based on true facts that existed at the time the statement was published. As commentators point out, a defendant cannot invent false facts about a person and then claim to offer a fair comment on them.

Absence of malice: A plea of fair comment will fail if the claimant proves that the defendant acted with express malice. In Bakare v Ibrahim, the court defined malice as any corrupt motive, wrong motive, or misuse of an occasion for an indirect purpose. Similarly, in Thomas v Bradbury, Agnew & Co Ltd, proof of malice destroyed the defence of fair comment entirely.

The honesty test: A comment remains fair even if it is biased, exaggerated, wrong-headed, or severe, so long as it is honestly held. The test is subjective: did the defendant genuinely hold this view, rather than would a reasonable person hold it? Lord Denning clarified this principle in Slim v Daily Telegraph Ltd.

Absolute Privilege

Total immunity: Absolute privilege is a complete defence that cannot be defeated, even if the statement was false and published with deliberate malice. Public policy demands that in certain vital contexts, individuals must be able to speak and write without any fear of civil liability.

Scope of absolute privilege: This absolute shield applies to statements made in Parliament during parliamentary proceedings, including official papers published by order of the House. It also protects statements made during judicial proceedings by judges, jurors, lawyers, and witnesses, provided those statements are broadly relevant to the matter before the court.

State and professional duties: Communications between a lawyer and client in connection with litigation enjoy absolute protection, provided they are reasonably referable to that professional relationship. High-level communications between officers of state in the course of official duties are also protected, though this absolute level of protection rarely extends below ministerial discussions.

Qualified Privilege

Nature of qualified privilege: Qualified privilege protects defamatory communications made on occasions where society requires free and frank disclosure. As noted in Toogood v Spyring, the defence exists where the common convenience and welfare of society demand protection. In Watts v Times Newspapers Ltd, the court confirmed that the categories of qualified privilege are never closed.

Difference from absolute privilege: Unlike absolute privilege, qualified privilege is defeated if the claimant proves that the defendant acted with express malice. If the defendant published the statement out of spite or an improper motive, the protection falls away entirely.

Duty and interest: Qualified privilege arises where the defendant has a legal, social, or moral duty to communicate information, and the recipient has a corresponding interest in receiving it. In Watt v Longsdon, sharing information with the company chairman was privileged because both parties shared a common interest in corporate affairs, but publishing unsubstantiated rumours to the claimant's wife was not privileged because no duty existed to inform her.

The objective duty test: Whether a moral or social duty exists is a question of law for the trial judge to decide. In Stuart v Bell, the court laid down an objective test: would the great mass of right-thinking people in the defendant's position have felt it their duty to communicate the statement under the circumstances?

Family and domestic warnings: Deciding whether a moral duty exists within family settings requires careful scrutiny. In Adams v Coleridge, a close relative or intimate friend was held privileged to warn a woman about the character of her prospective husband. However, as confirmed in Watt v Longsdon, outsiders generally have no right to interfere between a husband and wife.

Statements in self-defence: A person may make defamatory statements to defend their own property or reputation from an attack initiated by another party. However, the response must remain strictly proportionate to the original accusation. In Dwyer v Esmonde, the court explained that the privilege only extends so far as to repel the charges, and does not permit the defendant to launch unrelated counter-attacks on their adversary's private life.

Common interest: Qualified privilege also arises where the speaker and the recipient share a legitimate common interest in the subject matter. This interest may be commercial, as in Neville v Fine Art and General Insurance Co, or professional, as in Boston v W S Bagshaw & Sons, where auctioneers circulated information among colleagues regarding a buyer who took goods without paying.

Public and private grievances: Individuals are protected when petitioning the proper authorities for redress of grievances, provided they act in good faith. A private grievance affects an individual personally, whereas a public grievance impacts the community at large. Any person may approach an authority that has the lawful power to grant relief without incurring liability for slander or libel.

Reports of proceedings: Qualified privilege shields fair and accurate media reports of proceedings held in the legislature. The identical protection applies to fair and accurate reports of judicial proceedings, ensuring the press can inform the public of matters determined in open court.