In view of the discussion regarding defamation, it’s useful to have a little grounding on the subject.
What is defamation?
Defamation is the publication of an untrue statement which can negatively affect the reputation of the target. The target can be regarded with contempt, hated, ridiculed or avoided as a result of the statement. The burden of proof is on the CLAIMANT to establish that the publication is capable of affecting their reputation.
The Defamation Act 2013 introduced the requirement of serious harm to discourage trivial claims.
(1) A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.
(2) For the purposes of this section, harm to the reputation of a body that trades for profit is not “serious harm” unless it has caused or is likely to cause the body serious financial loss.Defamation Act 2013
It is essential for a damaging statement to be false. If the statement is true and damages the target’s reputation, there is no cause of action even if the motive was malicious. The only exception is where the Rehabilitation of Offenders Act 1974 applies. ROA 1974 refers to spent convictions, and the defence of truth may not apply in those cases. The Defamation Act 2013 defines truth as follows:
(1) 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.Defamation Act 2013
It should be noted that, in general, malice is irrelevant to this defence, with the exception of spent convictions as noted above. If an individual refers to such a conviction with malice, the defence of truth is destroyed, even if the conviction exists.
The idea behind this defence is to enable people to publish information on matters of public interest. Prior to the Defamation Act 2013, the protection was only available to journalists, although the defence of honest comment could be used by others. The conditions for this defence are:
- The statement must be in the public interest
- The person making the statement must have reason to believe the statement was in the public interest
Unlike the defence of truth, the defence of public interest is defeated by malice.
(1) It is a defence to an action for defamation for the defendant to show that—
(a) the statement complained of was, or formed part of, a statement on a matter of public interest; and
(b) the defendant reasonably believed that publishing the statement complained of was in the public interest.
(2) Subject to subsections (3) and (4), in determining whether the defendant has shown the matters mentioned in subsection (1), the court must have regard to all the circumstances of the case.
(3) If the statement complained of was, or formed part of, an accurate and impartial account of a dispute to which the claimant was a party, the court must in determining whether it was reasonable for the defendant to believe that publishing the statement was in the public interest disregard any omission of the defendant to take steps to verify the truth of the imputation conveyed by it.
(4) In determining whether it was reasonable for the defendant to believe that publishing the statement complained of was in the public interest, the court must make such allowance for editorial judgement as it considers appropriate.
(5) For the avoidance of doubt, the defence under this section may be relied upon irrespective of whether the statement complained of is a statement of fact or a statement of opinion. Defamation Act 2013
Originally known as “fair comment”, this defence is available when a statement is based on an opinion and indicates the basis of that opinion. The defence applies when an honest person could have been considered to have held the opinion in view of an existing fact.
(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—
(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. Defamation Act 2013
Operators of websites
The Defamation Act 2013 makes special provisions for operators of websites. This defence applies when people allow readers to post comments and the website operator is not the author of the comments posted.
(1) This section applies where an action for defamation is brought against the operator of a website in respect of a statement posted on the website.
(2) It is a defence for the operator to show that it was not the operator who posted the statement on the website. Defamation Act 2013