Defences to Defamation: A Quick Guide to Protecting Free Speech and Reputation

Defamation law seeks to balance the protection of reputation and the right to free speech. Defamation occurs when false statements cause serious harm to a person’s reputation. The UK’s Defamation Act 2013 allows individuals to bring a claim against someone who has made a defamatory statement. However, several defences exist that can protect defendants from liability. This article outlines some of the key defences available. 

Publishing a statement that appears damaging to someone’s reputation does not automatically result in legal liability. Various defences under defamation law may absolve the publisher of wrongdoing. 

Defences to Defamation 

Truth 

Under the Defamation Act 2013, truth is a complete defence to a defamation claim. If the defendant can prove that the defamatory statement is substantially true, they will not be liable, regardless of any damage to the claimant’s reputation. The defendant bears the burden of proving the truth of the statement on the balance of probabilities. Crucially, not every detail of the statement needs to be true, as long as the essential substance, or the “sting” of the statement, is accurate. 

Honest Opinion 

The defence of honest opinion, formerly known as “fair comment,” protects statements of opinion rather than assertions of fact. Under Section 3 of the Defamation Act 2013, the defendant must demonstrate that: 

A) The statement was a genuinely held opinion. 

B) The opinion was based on facts that existed when the statement was made. 

C) An honest person could have held the opinion, based on: 

• Facts that existed at the time of publication, or 

• Facts asserted in a previously published privileged statement. 

This defence does not apply if the claimant can prove that the defendant did not genuinely hold the opinion or made the statement with malice. 

Privilege 

Privilege is a defence that protects certain statements, regardless of their truthfulness or the harm they cause. There are two types of privilege: 

• Absolute Privilege: This offers complete protection for statements made in specific settings, such as during Parliamentary proceedings or in court. Even if the statement is defamatory, no legal action can be brought. 

• Qualified Privilege: This applies when the defendant had a duty or interest in making the statement, and the recipient had a corresponding interest in receiving it. However, the defence is lost if the claimant can prove the statement was made with malice. 

Publication on a Matter of Public Interest 

This defence protects statements on matters of public interest, provided the defendant reasonably believed that publishing the statement was in the public interest. This defence aims to safeguard responsible journalism and other communications on issues of public importance. The court will consider the overall context, including the seriousness of the allegation, the source of the information, and the steps taken to verify the facts. 

Innocent Dissemination 

The defence of innocent dissemination protects those who are not the author, editor, or primary publisher of defamatory content but were involved in its distribution, such as internet service providers or libraries. To succeed, the defendant must show that they exercised reasonable care regarding the publication and had no reason to believe the content was defamatory. 

Offer of Amends 

An offer of amends, a statutory defence under the Defamation Act 1996, allows the defendant to offer to apologise, correct the defamatory statement, and pay damages. If the offer is accepted, the claimant cannot proceed with the defamation claim. If rejected, the offer may still serve as a defence to limit liability. 

Website Operators 

Website operators may defend against defamation claims if they can prove they did not post the defamatory content themselves. However, this defence may fail if: 

• The claimant cannot identify the individual who posted the statement. 

• The claimant notified the operator of the complaint, and the operator failed to respond appropriately. 

• The operator acted with malice. 

UK defamation law offers several robust defences that help safeguard free speech while also protecting individuals from unwarranted reputational harm. Whether relying on truth, honest opinion, privilege, or other legal provisions, understanding these defences is crucial for anyone involved in defamation proceedings. By carefully navigating these defences, defendants can effectively counter defamation claims and uphold their right to free expression. 

If you believe you have been defamed or are facing a defamation claim, it is advisable to seek legal advice to fully understand your rights and options. 

For further information, contact Associate Solicitor Faiza Raqeeb at 020 7613 7126 or via email at f.raqeeb@rfblegal.co.uk.