Introduction

Defamation protects a person’s reputation from false and harmful statements. However, the law also recognises situations where a person should not be held liable for making such statements.

Certain legal defences allow a defendant to escape liability even if the statement appears defamatory.

Meaning / Definition

Defences to defamation are legal justifications that protect a person from liability for a defamatory statement.

If the defendant successfully proves any recognised defence, the court will not hold them responsible for defamation.

Modes or Types

Justification (Truth)

Truth is the strongest defence in a defamation case.

If the defendant proves that the statement made is true or substantially true, the law will not allow the plaintiff to recover damages for injury to reputation.

The defence applies even if the statement was made with bad intention (malice), because the law does not protect a reputation that a person does not actually deserve.

The statement need not be perfectly accurate in every minor detail. It is sufficient if the main part of the statement is true.

Fair Comment

Fair comment is a defence where the statement made is an honest opinion about a matter of public interest.

For this defence to apply, the following conditions must be satisfied:

• The statement must be a comment or opinion, not a statement of fact.
• The comment must be fair and honest.
• The comment must relate to a matter of public interest, such as books, films, public performances, or public conduct.

A comment is an opinion formed after observing certain facts. The facts on which the comment is based must either be true or known to the public.

If the comment is based on false facts, the defence will fail.

Privilege

In certain situations, the law gives protection to statements made in the interest of free speech.

In such situations, even if the statement is defamatory, the person making it may not be liable.

This protection is known as privilege.

Privilege may be of two kinds.

Absolute Privilege

Under absolute privilege, a person is completely protected from liability, even if the statement was made with bad intention.

This protection usually applies to statements made during:

• Parliamentary proceedings
• Judicial proceedings
• Certain official communications

Qualified Privilege

Qualified privilege applies when a statement is made in good faith and in the performance of a duty or for the protection of an interest.

However, if the plaintiff proves that the statement was made with malice (bad intention), the defence of qualified privilege will fail.

Important Case Law

Alexander v. North Eastern Railway

A newspaper reported that a person had been sentenced to a fine of £1 or three weeks’ imprisonment, while the actual sentence was a fine of £1 or fourteen days’ imprisonment. The court held that the statement was substantially true, and therefore the defence of justification succeeded.

Distinction / Comparison

Practical Example

A film critic writes in a newspaper that a newly released movie is poorly written and badly directed. The statement is the critic’s opinion based on watching the film.

Since this is an honest opinion about a public performance, it may be protected under the defence of fair comment.

Summary

• Defences to defamation protect a person from liability for defamatory statements in certain situations.
• The main defences are truth (justification), fair comment, and privilege.
• Truth is a complete defence if the statement is substantially correct.
• Fair comment protects honest opinions about matters of public interest.
• Privilege protects statements made in special circumstances such as courts or public duties.
• If any of these defences are proved, the defendant will not be liable for defamation.