Defamation law in the UK seeks to strike a balance between two fundamental rights: the protection of an individual’s reputation and the right to freedom of expression. Defamation occurs when a false statement is made about a person or organisation that causes serious harm to their reputation. However, not all allegedly defamatory statements result in legal liability.
The Defamation Act 2013 outlines several key defences that can protect a defendant from liability in a defamation claim. These defences serve to uphold journalistic freedom, public interest, and honest discourse, while ensuring that individuals and businesses are protected from unwarranted reputational harm.
This guide explores the main defences to defamation in the UK, including the legal requirements, relevant case law, and practical considerations.
1. Truth: A Complete Defence
The most fundamental defence in defamation cases is truth. Under Section 2 of the Defamation Act 2013, if the defendant can prove that the defamatory statement is substantially true, they will not be held liable.
Key Elements of the Truth Defence
- Burden of Proof: The defendant must prove that the statement is true, as defamation law presumes statements to be false unless proven otherwise.
- Balance of Probabilities: The defendant must show that the statement is more likely true than not.
- Substantial Truth: Not every detail needs to be true, but the “sting” or essential meaning of the statement must be accurate.
- Repetition of Rumours: The defendant cannot rely on truth if they are simply repeating a rumour unless they can prove the rumour itself is true.
- Impact of Partial Truth: If multiple defamatory allegations are made, and only some are true, the defence can still succeed if the untrue elements do not materially harm the claimant’s reputation.
Example Case
In Alexander v Arts Council England [2022], the defendant successfully relied on truth by proving that the allegations about the claimant’s misconduct were substantially accurate.
Challenges in Proving Truth
- The defendant must gather strong evidence, such as witness testimony or documentary proof.
- Even if the defendant knows the statement is true, they must convince the court with sufficient evidence.
- If the defendant fails to prove truth, they may face higher damages.
2. Honest Opinion: Protecting Freedom of Expression
The defence of honest opinion (formerly “fair comment”) protects statements of opinion rather than fact. This defence is crucial for journalists, critics, and commentators who wish to express subjective views without fear of litigation.
Legal Requirements (Section 3, Defamation Act 2013)
For the defence to apply, the following conditions must be met:
- The statement was an opinion, not a fact.
- The opinion was based on existing facts.
- An honest person could have held the opinion based on those facts.
Limitations:
- If the defendant did not genuinely hold the opinion, the defence fails.
- If the opinion is based on false facts, the defence is invalid.
- The defence does not require the opinion to be fair or reasonable, only honest.
Relevant Case Law
- Joseph v Spiller [2011]: The Supreme Court ruled that the basis of an opinion must be made clear.
- Riley v Murray [2023]: The defence failed because the supporting facts were not substantially true.
Practical Considerations
- Clearly distinguish opinion from fact when publishing a statement.
- Reference facts that support the opinion.
3. Privilege: Absolute and Qualified
Some defamatory statements are protected by privilege, meaning they are immune from legal action even if false.
Absolute Privilege
- Provides complete protection.
- Covers statements made in specific settings, including:
- Parliamentary proceedings.
- Judicial proceedings.
- Communications between state officials.
- Cannot be defeated, even if the statement was made with malice.
Qualified Privilege
- Partial protection, but can be defeated if the statement was made with malice.
- Covers:
- Employer references.
- Statements made in response to a duty or interest (e.g., answering police inquiries).
- Fair and accurate reports of public proceedings.
- Reynolds v Times Newspapers Ltd [2001]: Established the concept of “responsible journalism” as a factor in qualified privilege.
4. Public Interest Defence
Section 4 of the Defamation Act 2013 provides a defence for statements on matters of public interest, provided the defendant reasonably believed publication was in the public interest.
Key Factors Considered by Courts
- Was the subject matter of public concern?
- Was the defendant’s belief in the public interest reasonable?
- Did the defendant take steps to verify accuracy?
Case Law
- Serafin v Malkiewicz [2020]: The Supreme Court ruled that a rigid checklist of journalistic standards is not required.
5. Innocent Dissemination: Protecting Secondary Publishers
This defence applies to those who did not create the defamatory content but were involved in its distribution.
Who Can Use This Defence?
- Internet service providers (ISPs).
- Libraries and bookshops.
- Website operators who did not create the content.
Conditions to Succeed
- The defendant must show they exercised reasonable care and had no reason to believe the content was defamatory.
6. Offer of Amends (Defamation Act 1996)
A defendant can offer to make amends by:
- Issuing an apology.
- Correcting the statement.
- Paying compensation.
If the claimant accepts, they cannot proceed with a defamation claim. If they reject, the offer may still limit the defendant’s liability.
Case Example
- BCA v Singh [2010]: Demonstrated the value of early correction and retraction.
7. Website Operators Defence
Under Section 5 of the Defamation Act 2013, website operators can avoid liability if they:
- Did not post the content themselves.
- Can identify the original author.
- Respond appropriately to complaints.
Defence fails if
- The claimant cannot identify the author.
- The operator ignored takedown requests.
Conclusion
Defamation law in the UK provides several robust defences to protect free speech while preventing unjustified reputational harm.
- Truth is the strongest defence, but it requires proof.
- Honest opinion allows free expression of views but must be based on facts.
- Privilege provides immunity in legal and official settings.
- Public interest ensures responsible reporting on important issues.
- Website operators and secondary publishers have protections if they act responsibly.
If you are involved in a defamation dispute, seeking legal advice is essential. Understanding the nuances of these defences can make a significant difference in navigating defamation claims successfully.
