The Defamation Act 2013 introduced new defences to defamation claims. These replaced the common law defences of justification, honest comment and public interest. Nath Solicitors is a specialist defamation law firm in London. We outline the defences below.
Truth
The truth defence replaced the common law defence of justification. Section 2 of the Defamation Act states that:
‘It is a defence to an action for defamation for the defendant to show that the imputation conveyed by the statement complained of is substantially true.’
‘Substantially true’ means that the main point or “sting” of the statement is true, even if some minor details are not. There is an inherent connection between the meaning of words and the truth defence in defamation law. The defence applies to the particular meaning or meanings that the court determines the statement conveys. Ultimately, it is for the judge to decide what the statement means in the context of the case. In most defamation cases there will be a preliminary hearing to determine what the natural meaning of the words complained of is. Judges consider what a hypothetical reasonable person would take the words to mean.
The law presumes that a defamatory statement is false which means it is the defendant’s responsibility to prove the statement is true. The standard of proof needed to succeed is that the material must be proved true ‘on the balance of probabilities.’
Honest opinion
This replaced the common law defence of honest opinion or fair comment. This defence protects statements of opinion with an identifiable factual or privileged basis which an honest person could hold in relation to those facts. Section 3 of the Defamation Act stipulates that:
- The statement complained of must have been a statement of opinion
- The statement complained of indicated, whether in general or specific terms, the basis of the opinion
- An honest person could have held the opinion on the basis of any fact which existed at the time the statement was published or anything asserted to be a fact in a statement published before the statement complained of
There is no general need to persuade the court to share its views. However, there is a need to satisfy the judge that an honest person would have the same opinion on an established fact. The defence will not succeed if it can be shown that the defendant did not genuinely hold that opinion.
Public interest
This replaces the common law ‘Reynolds’ defence which protected ‘responsible journalism’. According to Section 4 of the Act, this defence would apply if:
- The statement complained of was, or formed part of, a statement on a matter of public interest; and
- The defendant reasonably believed that publishing the statement complained of was in the public interest.
The courts have consistently demonstrated that the question of whether what was published was a matter of public interest is an objective question for the court. However, as Justice Warby in Doyle v Smith [2018] states it was ‘impossible’ to provide a complete list of matters of public interest as it is potentially very wide. For example, in the Reynolds case, public interest was held to include matters relation to public life of the community and governance of public bodies, institutions and companies which are usually wide in range.
Additionally, the defendant must prove that they believed that publication was in the public interest. In assessing the defendant’s state of mind, some of the factors to consider are the seriousness of the allegation, the source of information, attempts to verify the information and whether comment was sought from the defamed party before publication.
One way a defendant can succeed is by relying on the ‘neutral reportage’ argument where it would be reasonable for a publisher to believe that publication is in the public interest, even if they have not tried to verify the truth of the allegations. This is because the public interest may lie in reporting the fact that the allegations exist, rather than confirming their accuracy.
Website operators defence
Section 5 of the Act provides a defence for website operators who follows the procedures detailed in the Defamation (Operators of Websites) Regulations 2013. This defence applies if operators follow the required procedures enabling a complainant to take action directly against the individual or individuals who posted the material, and if the operators adhere to the specified timetable for doing so.
Peer reviewed statement in Scientific or Academic Journals
If certain requirements are fulfilled, statements published in peer-reviewed academic or scientific journals are eligible for a particular defence under Section 6 of the 2013 Act. The statement is protected from defamation lawsuits under so-called ‘qualified privilege’ provided it is responsibly published in such a journal.
Other defences
This defences includes absolute privilege, qualified privilege, innocent dissemination, offers of amends, and accord and satisfaction. While these defences were not codified in the Act, they are still valid.
Contact Us
At Nath Solicitors, we offer expert legal advice on defamation, online reputation management, and media law. If you need guidance on how to navigate legal issues related to online content or require assistance with managing user-generated comments, contact us at 0203 983 8278 or get in touch with the firm online.