The main defence to a libel action is 'truth', that is being able to prove that the defamatory allegation is substantially true. Truth is a new statutory defence to an action to libel (introduced by the Defamation Act 2013) which replaces the old common law of justification. Whilst it is likely in practice to operate similarly to the old law, there will be some uncertainty as to how exactly it will be interpreted until a body of case law has been built up. In any event, wherever truth is to be relied upon for the publication of defamatory material, advice from the programme lawyer must be sought. There are complex rules of practice, procedure and evidence which need to be carefully considered before any defamatory material is published.
Honest opinion is another new statutory defence which replaces the old common law defence of 'fair comment', which has been abolished. It is now a defence to an action for defamation for a defendant to show that:
- the statement is one of opinion (not fact);
- the statement indicates, either in general or specific terms, the basis of the opinion; and
- an honest person could have held the opinion on the basis of any fact which existed at the time of publication (or anything asserted to be fact in a privileged statement published before the statement complained of). The defence is defeated if the claimant shows that the defendant did not hold the opinion; or in a case where the statement complained of is published by the defendant but made by another person (the author), the defence is defeated if the claimant shows that the defendant knew or ought to have known that the author did not hold the opinion. In other words if Channel 4 (the commercial publisher) broadcast a programme featuring a contributor (the author) expressing a defamatory opinion, the broadcaster's defence of honest opinion would be defeated if the claimant was able to show that the broadcaster knew or ought to have known that the contributor did not hold the opinion.
Other defences to libel include 'absolute privilege' and 'qualified privilege', which attach to certain occasions and proceedings and to their reporting. One of the best known examples of absolute privilege is Parliamentary Privilege, accorded by the Bill of Rights 1688, which states that, "… the freedom of speech and debates or proceedings of … Parliament ought not to be impeached or questioned in any court or place out of Parlyament". Most statements made in the course of judicial proceedings also attract absolute privilege, in other words a person cannot be sued for defamatory statements made during the course of proceedings before any court, irrespective of the truth or falsity of what is said and irrespective of the motive of the person making the statement. 'Qualified privilege' is so called because it is defeated by 'malice', that is that the publisher had some 'improper motive' for publishing, or that the publisher did not believe what he published. Whilst absolute privilege attaches to only a few occasions, qualified privilege now attaches to a whole host of occasions and types of reporting. This area of the law is relatively complex, so advice from the programme lawyer should always be sought if programme-makers are seeking to rely on a defence of privilege. If a person consents to being libelled, this is also a defence. Broadcasters may also be able to avail themselves of a specific defence relating to live broadcasts if a libel occurs unexpectedly. See 'Live Programme Guidelines'.
Publications on Matters of Public Interest
The Defamation Act 2013 has created a new public interest defence to an action for defamation: "It is 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.”
The new defence is intended to replace and improve upon the common law defence which had come to be known as the 'Reynolds Privilege' defence, which has been abolished.
The first part of the defence requires that the statement complained of was, or formed part of, a statement on a matter of public interest. Public interest is left undefined in the Act, although as the notes accompanying the Act make clear, the expression "public interest" is a concept which is well-established in law. A number of previous cases address the question of what constitutes the public interest, as indeed the Ofcom Broadcasting Code does, and it is likely to be to these sources that the courts will turn in future to decide whether in a particular case the statement falls within the public interest. It is noteworthy that the statement complained of doesn’t itself have to be on a matter of public interest as long as it formed part of a larger statement which did. This will enable the courts, when considering the applicability of this new defence, to consider the statement complained of in its wider context. The second part of the defence requires that the publisher must have believed that it was in the public interest to publish the statement, and requires that the publisher's belief must have been reasonable. This second part of the defence places the burden on the defendant of proving what their belief was at the relevant time. The requirement of reasonableness appears to introduce into the defence similar considerations that applied in the Reynolds Privilege defence, namely the sorts of questions which determined whether the publication amounted to 'responsible journalism'. Indeed, it appears that the requirement that there has been responsible journalism remains in place.
Under the old law, the defence of Reynolds Privilege had developed to protect the neutral reporting of existing disputes ('neutral reportage') - the press could neutrally report on existing disputes without fear of being sued and having to prove the truth of what one or other party was alleging. The public interest defence in the Act is intended to cover such reporting.