Defending Defamation

In a defamation suit, a Plaintiff has the burden to prove the 3 essential elements of defamation, namely:-

• that the words complained of is a defamatory statement

• that the the words complained of referred to him;and

• that the words complained of was published of and concerning him.

To learn more about the elements to establish defamation, click here.

If the Plaintiff successfully established the 3 essential elements of defamation, then it is necessary for the Judge to see if the Defendant is able to raise any defence to Defamation.

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Defence to Defamation
 

 The following are common defences that may be raised:

• Justification

• Fair Comment

• Absolute privilege

• Qualified privilege

• Reynold's Privilege

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Justification

Justification is a defence that can be raised if the Defendant claims that the words complained of ‘are true in substance and in fact’. Justification is a complete defence to any action of libel or slander (defamation). The object of civil proceedings is to clear the character of the Paintiff and to compensate him for any injury done to his reputation; and if the defendant has done no more than publish the literal truth about the plaintiff, the defendant has done him no wrong but merely making statements that are true.

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Fair Comment

For the defence of fair comment to succeed, the Defendant has to satisfied the following elements:

• It must be honest and must contain nothing which is not a genuine expression of the opinion actually entertained by the party defaming (the Plaintiff);

• It must be based on facts stated or assumed, and such facts, unless expressly or impliedly admitted by the party defamed (the Plaintiff), must be proved by the party defaming to be true (the Defendant);

• It must be relevant to, and arise out of, the facts so truly stated and must not contain or introduce any new or independent defamatory matter;

• It must not contain any matter imputing discreditable motives to the party defamed.

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Absolute Privilege

Absolute privilege renders defendant absolutely immune from civil liability for his defamatory statements. A statement is said to be absolutely privileged when it is of such a nature that no action will lie for it, however false and defamatory it may be, and even though it is made maliciously.

Examples of Absolute Privilege:-

• publication of notice of substituted service of originating summons is protected by absolute privilege;

• statements made in the course of judicial proceedings or statements contained in documents made in judicial proceedings are absolutely privileged;

• Parliamentary proceedings (s. 26 & s. 27 Houses of Parliament (Privileges and Powers) Act 1952);

• Police Reports (First Information Reports under Section 107 of the Criminal Procedure Code); and

• Statements given to police under Section 112 of the Criminal Procedure Cod

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Qualified Privilege
​The law treats the publication of statements that are false in fact and injurious to the character of another as malicious, unless it is fairly made by a person in the discharge of some public or private duty, whether legal, social or moral, or in the conduct of his own affairs, in matters where his interest is concerned. It is also essential that the recipient of the publication shares a common interest with the publisher or has a corresponding legitimate interest or duty to receive the publication.

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Reynold's Privilege​
A defence based partly on privilege relating to the publication of defamatory statements which comply with the various criteria relating to 'responsible journalism' and whether or not the statement or content in question was something which the public was entitled to know about as set out in the case of Reynolds v Times Newspapers [1999] All ER (D) 1172.