The four most common defences are as follows:
The defendant must show that the defamatory statement is true or substantially true. Immaterial errors will not therefore prevent the defence from succeeding. Whether an error is material or immaterial is often a subjective issue, which involves balancing the seriousness of what has been proved against the seriousness of what has not been proved.
This defence protects comments or opinion as opposed to statements of fact. The opinion could be exaggerated or prejudiced provided it has some factual basis. The defence can be lost if the claimant proves that the defendant did not actually believe the opinion.
Publication on a matter of public interest
This replaces a defence known as the Reynolds public interest defence. At present it is difficult to know what difference it will make. The defence seeks to protect responsible public interest journalism, but is not just available to journalists. The defendant must show that the statement was on a matter of public interest and he reasonably believed that publishing the statement complained of was in the public interest. Whether the belief was reasonable is likely to depend on how responsibly the defendant has behaved. This is likely to involve similar issues to the Reynolds defence, such as the credibility of the source, the attempts to verify and whether the claimant’s response was included.
In certain circumstances, the law regards freedom of speech to be more important than the protection of reputation and statements that may be false and defamatory will nevertheless be protected by the defence of privilege. The defence is flexible and covers any situation where it is felt to be of overriding importance that people should be free to speak their mind, e.g. certain business communications and public meetings.
There are two types of privilege: absolute and qualified. Absolute privilege is a complete defence that only applies in certain limited cases, such as court and Parliamentary proceedings. In contrast, a defence of qualified privilege will be defeated where the defendant has been malicious (see below).
The most common form of qualified privilege is where the defendant has a “legal, moral or social duty or interest” in making the publication and the recipients have a corresponding duty or interest in reading or hearing them. A common example is an employment reference. Another form of qualified privilege is in respect of the publication of reports of various documents and proceedings. These are set out in Schedule 1 of the Defamation Act 1996 as amended by the Defamation Act 2013.
The defence of qualified privilege will be defeated if the claimant can prove that the defendant was ‘malicious’. To establish malice it is usually necessary for a claimant to show that the defendant knew that the statement was false or was indifferent to its truth. So a person who makes a mistake in good faith is not guilty of malice.
The remaining defences are as follows:
Abuse of process
This covers a number of different situations where the claimant has a technically valid claim, but the court prevents it from proceeding. The most common has been where the claim has caused no real damage to the claimant and the costs of litigation far outweigh any benefit. This form of abuse of process is likely to be superseded by the serious harm requirement under the Defamation At 2013.
The defendant has an innocent and secondary role in the publication of the defamatory statement. This is a defence that may be available to internet service providers. It can be lost as soon as the defendant is made aware that the statement is defamatory. A similar defence may nevertheless be available under the Electronic Commerce (EC Directive) Regulations 2002.
Section 5 of the Defamation Act 2013 has a specific defence for operators of websites, which can only be defeated if the claimant shows that it was not possible to identify the person who posted the statement, the claimant gave the operator a notice of complaint and the operator failed to respond to it in accordance with relevant regulations; or if the operator was malicious.
Offer of amends
An “offer of amends” is an offer by a defendant to apologise and pay damages and costs. If the claimant rejects the offer, the defendant can rely on the offer as a defence unless the claimant proves that the defendant was malicious. An offer of amends may be “general”, in which case it covers the entire complaint or “qualified”; where it relates to part of the complaint. A qualified offer will only be a defence to the part to which it relates.
The claim has been brought too late. There is a one-year time limit for bringing a defamation claim, but the court may permit a claim to be brought at a later date. If there has been an earlier publication of the statement, the time period will usually start on the date of the earlier publication.
Consent to publication
The claimant expressly or impliedly agreed to the publication taking place.
Accord and satisfaction (Waiver)
The claimant has expressly or impliedly agreed not to pursue an action against the defendant.