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Defences to a Claim of Defamation

Justification (Truth)

It is a complete defence to an action for defamation to prove that the defamatory statement is substantially true. It is not necessary for a defendant to show that there was a public interest in publication and it does not matter whether he or she acted maliciously.

If relying on the defence of justification the burden of proof is on the defendant to prove that the allegations made are true. The defendant must prove it on the balance of probabilities, that is, the allegation is more likely than not to be true.

A defendant is not required to prove that every allegation is true. The Defamation Act 1952 provides that where the words complained of contain two or more distinct allegations a defence of justification can still succeed if the words not proved to be true do not materially injure the claimant’s reputation having regard to the imputations which are proved true.

A defendant cannot rely on the defence of justification in relation to the publication of the details of spent convictions, as defined by the Rehabilitation of Offenders Act 1974, if the claimant can show that the publisher acted ‘maliciously’.

An allegation published by repeating a rumour cannot be justified by proving that there was such a rumour. A defendant is required to prove the substance of the allegation.

Since the burden of proving the truth of an allegation is on the defendant, claimants enjoy a distinct advantage in defamation claims. Justification has to be used with great care. It can often be difficult to obtain sufficient admissible evidence to persuade a jury that the statement is true. This will sometimes result in the media being unable to publish allegations which are generally believed to be true, but which they may not be able to prove to the standard required in court. Further, an unsuccessful defence of justification is likely to increase the level of any damages awarded.

Fair Comment

If a defendant can prove that the defamatory statement is an expression of opinion on a matter of public interest and not a statement of fact, he or she can rely on the defence of fair comment.

The courts have said that whenever a matter is such as to affect people at large, so that they may be legitimately interested in, or concerned at, what is going on or what may happen to them or to others, then it is a matter of public interest on which everyone is entitled to make fair comment.

The comment must be based on true facts which are either contained in the publication or are sufficiently referred to. It is for the defendant to prove that the underlying facts are true. If he or she is unable to do so, then the defence will fail. As with justification, the defendant does not to have to prove the truth of every fact provided the comment was fair in relation to those facts which are proved.

Fair does not mean reasonable, but signifies the absence of malice. The views expressed can be exaggerated, obstinate or prejudiced, provided they are honestly held. If the claimant can show that the publication was made maliciously, the defence of fair comment will not succeed.

Privilege

If untrue defamatory allegations are published on an occasion of privilege, they will be protected from a claim for defamation. Although the law of defamation exists to protect reputations, it is recognised that in particular situations it is to the benefit of society generally for people to be able to communicate without the fear of being sued for defamation. This is so despite the risk that a person’s reputation will be damaged and they will not be able to restore it by bringing a claim for defamation.

Absolute Privilege

Absolute privilege provides a complete defence regardless of how malicious or untrue the allegation is. It applies to proceedings in Parliament or courts in England and Wales. The Defamation Act 1996 provides a statutory absolute privilege for contemporary or court-postponed fair and accurate reports of court proceedings in England and Wales, the European Court of Justice, the European Court of Human Rights and any international criminal tribunal established by the United Nations Security Council, or by an international agreement to which the United Kingdom is a party.
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