Defamation 3: General defences

Dr Peter Coe
Introduction: what
this part of the
lecture will cover
• In the previous two parts to this
lecture we looked at the
elements required to establish a
defamation claim.

• In this part of the lecture we will

consider defences.
Introduction
• The defences we will consider in this part
of the lecture:

1. Truth
2. Honest opinion
3. Public interest
4. Absolute privilege
5. Qualified privilege
6. Limitation.
Truth: section 2 DA 2013
• Reverse burden of proof placed on defendant to prove statement is ‘substantially
true’ on BoP.
• Why a reverse burden?

 Sir David Eady/ Jacob Rowbottom: power of the media (D. Eady, ‘Defamation:
Some Recent Developments and Non-Developments’ in M. Saville and R.
Susskind (eds), Essays in Honour of Sir Brian Neil: the Quintessential Judge
(LexisNexis, 2003), 155; J. Rowbottom, Media Law, (Hart Publishing, 2018) 54).
 Cf: Tony Weir ‘absurd’ reversal (T. Weir, Tort Law (Oxford University Press, 2002),
168).
• McVicar v United Kingdom App. no. 46311/99 (2002) 35 EHRR 22: RB compatible
with Art. 10 ECHR.

• A quick mention of Chase Levels (Chase v News Group Newspapers Limited

[2003] EMLR 11): see the first lecture video.
Honest opinion: section 3 DA 2013
• A defendant relying on this defence has to satisfy a number of conditions as follows:

1. 3(2) The statement complained of must be a statement of opinion. Branson v

Bower [2001] EMLR 32, [12]: ‘is or can reasonably be inferred to be a deduction,
inference, conclusion, criticism, remark, observation, etc.’
2. 3(3) The statement complained of must have indicated whether in general or
specific terms the basis of the opinion. Donovan v Gibbons [2014] EWHC 3406
(QB), [14]: important in an online context?
3. 3(4) Opinion must be one that an honest person could have held on the basis of
either (a) any fact which existed at the time the statement complained of was
published, or (b) anything asserted to be a fact in a privileged statement published
before the statement complained of.

• 3(4)(b) Problem for social media commentators? Gatley on Libel and Slander (12th ed.
Sweet & Maxwell, 2013), [12.23]; Ministry of Justice, Government’s Response to the
Report of the Joint Committee on the Draft Defamation Bill (Cm. 8295, 2012), [41].
• 3(5) Defence is defeated if the claimant can show that the defendant did not hold the
opinion.
Publication on a matter of public
interest: section 4 DA 2013
• Historical context: Reynolds Privilege (Reynolds v Times Newspapers
Limited [2001] 2 AC 127 (HL), per Lord Nicholls).
• Reynolds Privilege: limited to mass media?
• Abolished by DA 2013, and codified by section 4? (cf: Defamation Act
2013, Explanatory Notes, [35]; Serafin v Malkiewicz & Others [2020] UKSC
23, per Lord Wilson [66]).
• Section 4 DA 2013:
1. 4(1)(a): the publication ‘was, or formed part of, a statement on a
matter of public interest’; and
2. 4(1)(b): ‘the defendant reasonably believed’ that it was in the public
interest to publish the statement complained of.
• Economou v de Freitas [2018] EWCA Civ 2591; [2019] EMLR 7.
• Sooben v Badal [2017] EWHC 2638 (QB), per Nicklin J [32]-[34].
• Serafin [2020] UKSC 23.
Absolute and Qualified Privilege and
Limitation
• AP = no liability in defamation regardless of the truth of a statement or whether it was published
maliciously.
• AP common e.g. = fair and accurate reports of proceedings before any national or international court
or tribunal (see section 14 Defamation Act 1996, as amended by section 7 of the 2013 Act).

• QP = conferred by statute or by the common law.

• CL = legal, moral, or social duty, or legitimate interest in making the statement to a recipient who had
a corresponding interest or duty in receiving it. Attaches to private/public online publications.
• Section 6 DA 2013 = QP for statements published in scientific/academic journals.

• Limitation = one year from the date on which the cause of action accrued (section 4A Limitation Act
1980).

• Problem at common law in context of online publications?

• Rectified by section 8 DA 2013?
• Section 32 LA 1980: discretion to extend section 4A time limit.
Conclusion

• In this lecture we have considered the

defences available to defamation claims.

• In the next lecture we will look at issues

specifically relating to the online arena.