Lecture notes - Defences to defamation PDF

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DEFENCES TO DEFAMATION
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DEFENCES TO DEFAMATION

This handout covers the following defences:         

Truth Honest Opinion Operators of Websites Innocent dissemination Absolute Privilege Qualified Privilege Publication on a matter of public interest Statements in scientific and academic journals Offer of Amends

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Consent

1. TRUTH Under s. 2 Defamation Act 2013, the defence of truth may be relied on by the defendant if the statement complained of is substantially true. Where a statement is true, the claimant cannot be defamed since a person’s reputation or standing in the eyes of others cannot be damaged if he had never had the reputation.

Where the statement complained of contains two or more imputations, the defence of truth does not fail simply because all the imputations are not substantially true as long as the imputations which are not substantially true do not seriously harm the claimant’s reputation.

S. 2 abolished the common law defence of justification and replaces it with ”truth”. However, the substance of the new defence of truth is the same, in all material respects, to the old defence of justification. Accordingly, the authorities on the defence of justification remain relevant.

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The onus is on the defendant to prove that the statement, including any innuendo, is substantially true. The standard of proof is on a balance of probabilities.

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Williams v Reason [1988] 1 WLR 96 – an allegation that the defendant, an amateur golfer, published and a sold a book for money in breach of his amateur status, was justified by evidence that the defendant took money in order to wear a particular brand of boots.

Contrast with:

Wakley v Cooke [1849) 154 ER 1316 – the following comment was made about the claimant, a coroner: “there can be no court or justice unpolluted which this libellous journalist, this violent agitator and sham humanitarian is allowed to disgrace with his presidentship”. The defendant pleaded justification with respect to the “libellous journalist” claim by claiming that the claimant had in fact published one libel in a magazine in the past.

It was held that the defence was not available since the statement suggested that the claimant habitually published libels or published libels with ulterior motives -allegations which were not proven.

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Please note that every statement in the publication need not be completely true; it suffices if the statement is substantially true and the untrue elements do not themselves significantly harm the claimant’s reputation.

According to Sutherland v Stokes [1925] AC 47, the defence requires that the “sting” of the allegation be made out even if minor mistakes do occur; All that was required to affirm that plea was that the jury should be satisfied that the sting of the libel or, if there were more than one, the stings of the libel should be made out […] There may be mistakes here and there in what has been said which would make no substantial difference to the quality of the alleged libel or in the justification pleaded for it. […] In the second place however, the allegation of fact must tell the whole story … 

Minor inaccuracies will not invalidate the defence of truth. In Alexander v NE Railway [1865] 6 B & S 340, a claim that the defendant was convicted for an

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offence and sentenced to three weeks imprisonment in default of fine was held to be true even though the actual sentence was two weeks. 

Apart from the facts expressly stated, any innuendos contained in the statement must also be substantially true. Sutherland v Stokes: Then as to the breadth of the justification. When a plea of truth in substance and in fact is made it affirms not only in the sense I have mentioned the facts, but it affirms all that attaches to them as their natural and reasonable meaning – Lord Shaw.

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The “sting” approach may, however, not be applicable where a specific allegation is made and this allegation is the basis of a defamatory action. A plea of truth in that case must show that the specific allegation is true.

Bookbinder v Tebbit [1989] 1 All ER 1169 – a specific allegation that a council chairman wasted public funds in the printing of stationery was not justifiable by evidence of general overspending in the council.

See also Cruise and Kidman v Express Newspapers [1999] QB 931.

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A criminal conviction will be a conclusive proof of the commission of the offence. Thus, an allegation of criminality could be proved merely by reference to the conviction even when the conviction is spent.1 S. 13(1) Civil Evidence Act 1968 In an action for libel or slander in which the question whether the plaintiff] did or did not commit a criminal offence is relevant to an issue arising in the action, proof that, at the time when that issue falls to be determined, he stands convicted of that offence shall be conclusive evidence that he committed that offence; and his conviction thereof shall be admissible in evidence accordingly.

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A criminal conviction is spent after 5 years for a non-custodial sentence; 7 years for a sentence of less than 6 months; 10 years for a sentence of between 6 to 30 months (for children, the period is half the period for adults). Where a conviction is more than 30 months, it cannot be spent.

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However, if a statement (allegation) concerns a criminal conviction which has been spent, the defence of truth will not be available if the statement (allegation) was made maliciously – See s. 8 Rehabilitation of Offenders Act 1974.

Unsuccessful plea of truth -- Where the defence of justification fails, the defendant may incur a larger amount in damages; the extra publicity involved in prosecuting and defending the case would be aggravating factors.

See Cassell v Broom [1972] 2 WLR 645 (HL).

2. HONEST OPINION

2.1 Historical Background The defence of honest Opinion was previously known as “Fair Comment”, and later as “Honest Comment. The 2013 Defamation Act has re-branded it as “Honest Opinion”. The defence of Fair Comment was originally introduced in respect of defamation actions arising from criticisms of, and commentaries on, literary works, works of art, plays, theatrical performances, musical compositions, and concerts.

In order to sustain a claim of fair comment, the literary work, which was the subject of the comment must be disclosed. The nature of the works concerned meant that a critique or comment would not have much meaning if the work was not identified. In addition, there must be no malice behind the criticism or comment. The issue of malice was important because comments on such matters were usually subjective – opinions were likely to vary from one person to another. There was an implication of malice until it was rebutted.

In the 19th Century, the defence of fair comment was extended to other matters, including the conduct of individuals, where these were of public interest.

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The essentials of the defence of fair comment was set out in the case of Campbell v Spottiswoode (1863) 3 B & S 769 as follows: Nothing is more important than that fair and full latitude of discussion should be allowed to writers upon any public matter, whether it be the conduct of public men, the proceedings in courts of justice or in Parliament, or the publication of a scheme or of a literary work. But it is always to be left to a jury to say whether the publication has gone beyond the limits of a fair comment on the subject-matter discussed. A writer is not entitled to overstep those limits and impute base and sordid motives which are not warranted by the facts, and I cannot for a moment think that, because he has a bona fide belief that he is publishing what is true, that is any answer to an action for libel. With respect to the publication of the plaintiff’s scheme, the defendant might ridicule it and point out the improbability of its success; but that was all he had a right to do – Crompton J. 

In 2010, the defence was changed to “Honest Comment” by the Supreme Court in Spiller & Another v Joseph & Others [2010] UKSC 53. The court held that the defence availed if the defendant honestly held the view expressed in the comment, even if he had malice.

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The defence of “fair Comment” has now been abolished and replaced by “Honest Opinion” by s. 3(8) Defamation Act 2013. This provision is a reflection of current judicial opinion on the matter. As was earlier observed in British Chiropractic Association v Singh [2010] EWCA Civ 350: The law of defamation surely requires that language should not be used which obscures the true import of a defence to an action for damages. Recent legislation in a number of common law jurisdictions - New Zealand, Australia, and the Republic of Ireland - now describes the defence of fair comment as "honest opinion". It is not open to us to alter or add to or indeed for that matter reduce the essential elements of this defence, but to describe the defence for what it is would lend greater emphasis to its importance as an essential ingredient of the right to free expression. Fair comment may have come to "decay with … imprecision". 'Honest opinion' better reflects the realities.

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The new defence retains many of the elements of the old defence; therefore, many of the authorities on Fair/ Honest Comment remain valid.

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However, the requirement that the comment/opinion be on a matter of public interest, has been removed

2.2 Rationale for defence The defence of honest opinion is founded on the need to protect the freedom of speech of individuals (as guaranteed by article 10 of the EU Convention 1950; and the Human Rights Act 1998) in the face of the need to protect others’ reputation. In other words, the protection of reputation should not abrogate the right to freedom of expression in a free society. It has been observed that: The right of fair comment is one of the essential elements which go to make up our freedom of speech. We must ever retain this right intact. It must not be whittled down by legal refinements – Lord Denning in Slim v Daily Telegraph [1968] QB 157. It is has also been observed that: The reason why, once a plea of fair comment is established, there is no libel, is that it is in the public interest to have a free discussion of matters of public interest –Scott LJ in Lyon v Daily Telegraph [1943] KB 746. Moreover, his lordship continues, fair comment: is one of the fundamental rights of free speech and writing which are so dear to the British nation, and it is of vital importance to the rule of law on which we depend for our personal freedom that the courts should preserve the right of “fair comment” undiminished and unimpaired… Scott LJ. 2.3 Conditions for the Defence

S. 3 Defamation Act 2013 provides as follows: (1) It is a defence to an action for defamation for the defendant to show that the following conditions are met. (2) The first condition is that the statement complained of was a statement of opinion. (3) The second condition is that the statement complained of indicated, whether in general or specific terms, the basis of the opinion. (4) The third condition is that an honest person could have held the opinion on the basis of — 6

(a) any fact which existed at the time the statement complained of was published; (b) anything asserted to be a fact in a privileged statement published before the statement complained of. (5) The defence is defeated if the claimant shows that the defendant did not hold the opinion. .

1. The statement must be an opinion and not an imputation of fact The statement must be in the nature of comment, opinion or criticism about existing facts; it must not be an allegation of fact.

Hunt v The Star Newspaper Co Ltd [1908] 2 KB 309 (CA) The law as to fair comment, so far as is material to the present case, stands as follows: In the first place, comment in order to be justifiable as fair comment must appear as comment and must not be so mixed up with the facts that the reader cannot distinguish between what is report and what is comment – Moulton LJ. Further: Any matter, therefore, which does not indicate with a reasonable clearness that it purports to be comment, and not statement of fact, cannot be protected by the plea of fair comment. Reynolds v Times Newspapers Ltd [2001] 2 AC 127, 193: It is important to keep in mind that this defence is concerned with the protection of comment, not imputations of fact. If the imputation is one of fact, a ground of defence must be sought elsewhere. To be within this defence the comment must be recognisable as comment, as distinct from an imputation of fact – Lord Nicholls Telnikoff v Matusevitch [1992] 2 AC 345 The defendant suggested in a letter published in a newspaper that the claimant had been anti-semitic in his article published earlier in the same newspaper. In an action for libel, the defendant pleaded fair comment on the ground that he was expressing his opinion on the article. The statement in the article on which the comment was 7

purportedly based was not disclosed in the letter. It was held that the letter, read in isolation from the article, contained assertions of fact which the defendant needed to prove. 

The European Court of Human Rights has endorsed this requirement.

Lindon, Otchakovsky-Laurens and July v France (2007) 46 EHRR 761: The classification of a statement as a fact or as a value judgment is a matter which in the first place falls within the margin of appreciation of the national authorities, in particular the domestic courts. However, even where a statement amounts to a value judgment, there must exist a sufficient factual basis to support it, failing which it will be excessive – the Grand chamber, paragraph 55. 

Distinguishing

between

facts

and

opinion,

however,

is

not

always

straightforward – one statement may be both an assertion of fact and an opinion depending on the context.

Myerson v Smith’s Weekly [1923] 24 SR (NSW) 20, 26: To say that a man’s conduct is dishonourable is not comment, it is a statement of fact. To say that he did certain specific things and that his conduct was dishonourable is a statement of fact coupled with a comment – Ferguson J. British Chiropractic Association v Singh [2010] EWCA Civ 350. The following statement was made by the defendant, a science writer, in the Guardian Newspaper: The British Chiropractic Association claim that their members can help treat children with colic, sleeping and feeding problems, frequent ear infections, asthma and prolonged crying, even though there is not a jot of evidence. This organisation is the respectable face of the chiropractic profession and yet it happily promotes bogus treatments. In an action for libel, the defendant pleaded fair comment. The question was whether the statement was fact or comment. The trial judge held that the statement was fact. On appeal, the Court of Appeal held that the statement was comment rather than fact.

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The comment must be based on facts in existence at the time of the comment and not those that might exist after the comment.

Cohen v Daily Telegraph Ltd [1968] 1 WLR 916 In order to make a good plea of fair comment, it must be a comment on facts existing at the time. No man can comment on facts which may happen in the future […] A man may comment on existing facts without having them all in the forefront of his mind at the time. Nevertheless, it must be a comment on existing facts – Lord Denning. See also Lowe v Associated Newspapers Ltd [2006] EWHC 320 (QB); [2007] QB 580.

2. The Opinion must indicate the facts on which it is based

It used to be the case that the facts on which the comment was allegedly made must be sufficiently disclosed or stated in order to enable readers or listeners to judge for themselves whether the comment was founded or not. A comment made on the basis of facts not stated or disclosed was tantamount to an allegation of fact; in such situations the plea of fair comment would fail – see Myerson v Smith’s Weekly (supra)

Hunt v The Star Newspaper Co Ltd [1908] 2 KB 309 (CA) In the next place, in order to give room for the plea of fair comment the facts must be truly stated. If the facts upon which the comment purports to be made do not exist the foundation of the plea fails […] Finally, comment must not convey imputations of an evil sort except so far as the facts truly stated warrant the imputation…. To allege a criminal intention or a disreputable motive as actuating an individual is to make an allegation of fact which must be supported by adequate evidence. I agree that an allegation of fact may be justified by its being an inference from other facts truly stated, but … in order to warrant it the jury must be satisfied that such inference ought to be drawn from those facts – Moulton LJ Brent Walker Group plc v Time Out Ltd [1991] 2 QB 33, 44:

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Thus the law has developed the rule already mentioned that comment may only be defended as fair if it is comment on facts […] stated or sufficiently indicated. Failing that, the comment itself must be justified – Bingham LJ. 

An exception to the above is where the comment concerned a matter which was of public knowledge or in the public domain, e.g. a book, a movie, or the conduct of a public figure, which has become public knowledge. In those instances, the defence might succeed without an explicit disclosure of the facts on which the comment was based as long as sufficient inference about it could be drawn from the comment – see Kelmsley v Foot [1952] AC 345.

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This principle of sufficient indication/inference was later extended to all cases of honest comment. Stating the particular facts on which a comment / opinion was based was no longer necessary: The comment must explicitly or implicitly indicate, at least in general terms, what are the facts on which the comment is being made -- Lord Nicholls in Reynolds v Times Newspapers Ltd [2001] 2 AC 127, 193:

Citing the above quote with approval, the Supreme Court adopted this principle in Spiller & Another v Joseph and Others [2010] UKSC 53.

Spiller & Another v Joseph and Others [2010] UKSC 53. The defendants alleged that the claimants (theatre performers) had breached their contract with them. Consequently, they published on their website the following statements among others: 1311 Events is no longer able to accept bookings for this artist as the Gillettes c/o Craig Joseph are not professional enough to feature in our portfolio and have not been able to abide by the terms of their contract… We would recommend that you take legal advice before booking this artist to avoid any possible difficulties. The claimants sued for defamation on the ground that the publication suggested that they were grossly unprofessional and are likely to breach their contract with other clients.

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The defendants pleaded fair comment and justification. The court of appeal held that the comment was on a matter of public interest but struck out the defence of fair comment on the ground that the comment did not state the contract and the term which was allegedly breached, as a result of which the readers could not evaluate whether the comment was justified

On appeal to the Supreme Court, it was held that the defence of fair comment was available; there was no need to specify the particular contracts and the term which was breached. It was sufficient that the comment “identified the breach as part of the subject-matter of the comment: Today the internet has made ...