The Defamation Act 2013 made several changes to the libel laws in England and Wales. Among these changes were the defences available to an action for defamation, several of which have been substituted. New defences have also been added.
Truth (section 2 of the Defamation Act 2013)
The ‘justification’ defence has been replaced with a ‘truth’ defence.A person defending a defamation claim (a ‘defendant’) now has to prove that “the imputation conveyed by the statement complained of is substantially true”.
Honest opinion (section 3 of the Defamation Act 2013)
The defence of ‘fair comment’ has been abolished. The new ‘honest opinion’ defence requires that:
a. the statement complained of (by the ‘claimant’) was a statement of opinion;
b. the statement complained of indicated, whether in general or specific terms, the basis of the opinion; and
c. an honest person could have held the opinion on the basis of:
i. any fact which existed at the time the statement complained of was published;
ii. anything asserted to be a fact in a ‘privileged’ (that is, protected) statement published before the statement complained of.
Under this defence, there is no requirement that, at the time the statement was published, the defendant knows the fact upon which an honest person could have formed the opinion.The previous requirement that the comment be made in the public interest has also been removed.
Publication on a matter of public interest (section 4 of the Defamation Act 2013)
It is now “a defence to an action for defamation for the defendant to show that –
a. the statement complained of was, or formed part of, a statement on a matter of public interest; and
b. the defendant reasonably believed that publishing the statement complained of was in the public interest.
”There is no requirement for the publisher to prove that it:
a. has met a standard of responsible journalism;
b. satisfied any or all of the ‘common law’ (that is, case law) factors; or
c. acted both fairly and responsibly in gathering and publishing information.
In determining the defendant’s reasonable belief, “the court must make such allowance for editorial judgment as it considers appropriate” as well as “all the circumstances of the case”.
Operators of websites and persons who are not the author, editor or publisher of a statement complained of (sections 5, 10 and 13 of the Defamation Act 2013)
Website operators have a defence to a defamatory statement posted on their site by a third party, if:
a. the claimant can identify the poster; or
b. the operator has not received a notice of complaint; or
c. on receipt of a notice of complaint, the owner complies with the regulations – for instance, it removes the offending post or provides the claimant with the identity or contact details of the poster.
