What are the Defences available in defamation claims?
This article discusses some common defences available in defamation claims relating to libel (written statements). It outlines the protection these defences can afford to parties who are wrongfully accused of causing harm to another party’s reputation, and the risks to claimants who stick to their guns at all costs. Defamation commonly affects not only individuals, but businesses and professionals.
Each case turns on its own facts and taking early legal advice is essential.
Even if a party publishes a statement which, on the face of it, appears to cause damage to someone’s reputation, that does not automatically mean that it is actionable in law. There are a whole host of defences in which the publishing party may be excused from wrongdoing. Some common examples are outlined in brief below.
Is the statement true?
If a statement is true, then that could afford a defence against defamation proceedings. This is provided for in section 2(1) of the Defamation Act 2013 which says:
“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”.
The courts adopt an objective assessment and disputes commonly circle around the meaning of the words. An example might be to say someone has been convicted of a crime, when they have. On this basis, their reputation has not been unfairly harmed, where it is true.
Is the statement partly true?
If only part of the statements are true, and some aspects aren’t, the court will look to whether the false statements are actually harmful or not. If the false aspects don’t cause substantial harm to the claimant then a defence of “truth” might still assist.
Does privilege apply
Statements which are afforded privileged status in law may be protected against defamation claims.
Some publications are automatically afforded “absolute privilege” and may be excused from being defamatory. These include judge’s rulings during the course of legal proceedings, some reports of judicial proceedings, and statements by Members of Parliament who engage in parliamentary debate.
The concept of “qualified privilege” often arises in defamation cases, which broadly can offer protection to a publisher of a statement if they had a legal, moral obligation or interest in making the publication to another party (conversely the party receiving it had a similar interest to receive it). If qualified privilege is raised by the Defendant, it is for the Claimant to show that the publisher did so with “malice”, i.e. some other adverse motive, or else a qualified privilege defence may assist.
Is the statement honest opinion
Under section 3 of the Deformation Act 2013, if a statement is made which is:
- A) a statement of opinion
- B) the basis of the opinion is stated
- C) it is reasonable for the publisher to have held the opinion based on facts available at the time
then the defence of “honest opinion” could apply. The meaning is not entirely clear from statute and disputes often arise as to what is objective fact and what is subjective opinion.
Is the matter in the public interest
Section 4 of the Defamation Act 2013 outlines that if the statement concerns a matter of public interest, and that the publisher genuinely believed that publishing it was in the public interest, then a defence may succeed against defamation proceedings. This is an attempt to put into statute a requirement for responsible publication under the case of Reynolds v Times Newspapers Ltd  2 AC 127.
The courts frequently have to balance competing interests under the Human Rights Act 1998, to Article 10, the right to freedom of expression and Article 8, the right to private life. If the freedom of expression right of the publisher is unfairly hampered with minimal impact on the private life of the complaining party, then a defence may arise.
Has the other party consented to publication
If a claimant has read and agreed that a statement about them can be published, but later changes their mind and consider this is now damaging to them, then that might act as a bar to a defamation claim. Retrospective objection may cause issues unless circumstances have materially changed.
Is there any serious harm?
Even if the statement published does appear to defame another party, if that party cannot prove they have suffered actual serious harm, for example if a business cannot prove that they have suffered any financial loss, then the claim may fail. The threshold is high and can frustrate cases which initially appear to have merit.
Has the defamation been communicated?
If the statement complained of has not actually been communicated to another party, say a letter is sent to someone which contains defamatory comments and has the potential to seriously harm the complainant, but the letter is not actually read, then the claim may be frustrated.
Has the Defendant admitted liability and offered to make amends
It is possible for someone who has defamed someone and who is sued for libel to hold their hands up early on and admit they have done wrong, and offer to make amends for loss caused. This might arise whether or not the original defamation was innocent or not. If this offer is not accepted and proceeds to trial, and the court considers it was wrong of the claimant not to have accepted it, it can serve to drastically reduce the amount of any award.
There are other issues which can help to defend claims of defamation, it is not possible to address them all here. Clearly then, simply because someone alleges they have been defamed, that does not mean they will automatically succeed at court. Taking early legal advice is essential.