DEFAMATION DEFENCES PART 1

DEFENCES AVAILABLE Truth (s2. Defamation Act 2013 (the Act)) Honest Opinion (s.3) Privilege – absolute and qualified - now extended and changed by the Act. See new defence below. Offer of Amends under s.2 Defamation Act 1996 Consent Innocent Defamation under s.1.Defamation Act 1996

WHICH ONE TO USE? Defendants, in the past, have sometimes used only one but have occasionally tried several in the hope that one will work! See eg. Henry v BBC where used Justification and old Reynolds privilege (public interest) This practise will probably continue under the new Act.

THIS WEEK…… TRUTH HONEST OPINION PRIVILEGE FOR PEER REVIEWED ARTICLES IN SCIENTIFIC/ACADEMIC JOURNALS - New defence under s.6

TRUTH S.2 2013 Act MAY APPEAR AN EASY DEFENCE BUT MAY BE AS DIFFICULT AS JUSTIFICATION WAS.. CAUTION – if this defence is used and fails the defendant can be required to pay higher damages. McLibel case (Steel & Morris) Constance Briscoe case Hunt v Times Newspapers Ltd. 2013- WON with Justification.

What does the Defendant have to prove? Truth or substantial truth (sting) of each statement (main sting only not necessarily all of the statement) The truth of any reasonable interpretation which may be understood of the statement The truth of any innuendo

EVIDENCE Def. must be able to produce the evidence in court – e.g. McLibel case Defendant should believe the words are true Should intend to support defence at trial AND should have EITHER reasonable evidence to support the defence OR reasonable grounds for supposing it will appear in time for the trial (risky!!!) See Aitken case and Kate Moss action.

Hope and Malice Not advisable to use this defence in the HOPE that evidence will appear – anyone using this defence must know where the evidence can be found (Aitkin case/Kate Moss case) IF the material is TRUE then motive for publication is immaterial BUT see Rehabilitation of Offenders Act and spent convictions.

PROTECTION & DEFENCE Witness statements - signed & dated Affidavits Journalists/writers etc. must keep notebooks and recordings – for how long? Time limit is still 12 months for issue of claim but now repetition of material will not start new time period to run. See new Act.

TRUTH – will new name change much? s.2 sets out the defence and abolishes Justification and aims to make law simpler Will any of the old case law apply? It seems as though it will be used by courts in relation to meanings and harm Remember – the claimant has to show ‘substantial harm’ to continue a claim so threshold is higher than under previous law.

HONEST OPINION (created by s.3) Under the old defence Comments had to arise from an honestly held belief in the material commented upon Was a very complex defence to use – ‘a potential minefield’ 2 cases from 2010 allowed the CA and SC to discuss this defence and give guidance – the Singh case CA [2010] and Spiller v Joseph UKSC [2010]. Some ideas taken up in the new Act.

Elements of the new defence (1) A statement: In the form of HONEST OPINION (important) What that opinion is based upon - specific or general terms (also very important) An honest person could have held that opinion on the basis of:- any fact which existed at the time the statement was published/anything asserted to be a fact in a privileged statement published before the material complained of.

Elements of new defence (2) Almost identical to the old defence BUT Requirement for subject to be a matter of public interest has now gone Honesty is still at the core – if claimant can show defendant did not hold that opinion defence fails. Some concern about how new defence will work – see comments in Blackstone’s Guide to the new Act. Old cases may still be useful.

How will MALICE be treated? Malice always defeated old defence and will defeat this new defence too. Malice may show no honest belief in the comment Consider: – style & manner of publication/language Personal grudges? Refusal to retract comments

A few CASES to remember Silkin v Beaverbrook [1958] – cranks can have honestly held opinions Branson v Bower [2002] Galloway v Telegraph Media Group Ltd [2003] BCA v Singh [2010] Spiller v Joseph [2010] Lait v Evening Standard Limited [2011] useful on single meaning rule as it is currently Thornton v Telegraph Media Group Ltd [2011]

PEER REVIEWED STATEMENTS (1) New defence created by s.6 The statement must be in a scientific or academic journal Such a statement is privileged if: A. the statement relates to a scientific or academic matter and B. Before the statement was published in the journal an independent review of the article was carried out by the editor of the journal and one or more persons with expertise in that particular matter.

PEER REVIEWED STATEMENTS (2) Defence is defeated by malice As this is an entirely new defence we have to wait and see how it will operate in practise. Prior to the new Act there had been several cases involving comment & criticism of an academic or scientific nature. In most of those cases e.g. Singh, this defence would not have helped as material/publication would not meet the criteria.