Defences to Defamation Claims

Defamation occurs when a statement is made or published that can cause harm to the reputation of another person or company. If a defamation claim is made against you, there are a number of defences that may be accepted by a court which would prevent penalties.

The following article explains the defences that can be made to defamation and the instances in which they may be appropriate. A solicitor will support any defendant is assessing their case and demonstrating their defence to claims made against them.

Justification

The ultimate defence to a claim of defamation is justification, and this means that the published statement was true. The defendant will be responsible for proving that the contents of the statement were true to be successful in this form of defence. Even if the statement was published with malice, if it can be demonstrated that it was true, the defence will be valid. In order for a defendant to be successful in a justification defence, they must prove to a jury that the published statement was true. The jury will then decide whether the defamatory meaning on the case is justifiable.

Malice can be seen by a court as:

• Statements made that are reckless with the truth
• A fundamental improper motive when making a statement that purports to be true
• Misuse on the circumstances of privilege (as covered later)

If the defendant is able to prove that the majority of the statements made were true, a few untrue words that may have been included will not defeat the defence of justification unless the untrue content has a significant detrimental impact on the claimant's reputation.

Honest Comment

A defendant may also submit a defence of honest comment which means that they believed that their comments were true. If it can be proven that the defamatory expression was made without malice and was thought to have been true, the court may reject the claim. However, if the court believes that the statements were made with malice, this form of defence will not be valid.

For a defence of honest comment to be successful, the defendant will need to demonstrate that the statement:

• Was a matter of public interest
• Was based on true facts (or if the fact were not true, they can be defended by privilege)
• Can be defined as a comment instead of an allegation of factual content
• Relates to a matter which is of legitimate concern to the public or a matter that has been brought before the public.

Innocent dissemination

Innocent dissemination can be used as a defence for defamation cases related to the publication of written statements or images. In order to be successful with this type of defence, the defendant must be able to demonstrate that they had no knowledge of the defamatory nature of the published piece, had no reason to believe that the content contained libel and that their lack of knowledge was not tantamount to negligence.

Privilege

A defence of privilege can fall into one of two categories - absolute privilege and qualified privilege. Privilege as a defence acknowledges that there are instances when statements should be made with greater freedom if it is in the public interest. Absolute privilege serves as a total bar to libel claims, and qualified privilege serves as a defence if it can be proven that the statement was made without malice.

Absolute Privilege

Absolute privilege offers a complete defence to the defendant for statements that are made in specific circumstances, such as:

• Statements made during parliamentary proceedings
• Comments and statements that are made in judicial proceedings
• Statements made in specific authority arenas including Coroner's Courts, Military Courts and the General Medical Council.
• Statements made by other public officials that are protected by statute

Malice will not defeat a defence of absolute privilege.

Qualified Privilege

Qualified privilege is explained by the Court as statements that are made "for the common convenience and welfare of society because the law accepts that there are occasions when persons should be at liberty to express themselves freely even when in doing so a third party is defamed."

This type of defence includes examples such as statements that are made with the motive of a legal, social or moral duty and honest, accurate and fair statements of judicial and parliamentary proceedings.