Statutory Defences to Defamation

Stephen McArdle
Stephen McArdle

Published: September 15th, 2021

3 mins read

Due to the evolution of the Court system and the increase of internet resources, Court documents and information are generally more accessible to individuals who may wish to make a claim. It is therefore easier for a person who feels that they have been wronged to make a civil claim against those they feel have wronged them.

If a person feels that a particular verbal comment or post on social media is defamatory or has caused damage to their reputation, it is relatively easy for that person to bring a claim for defamation. However, to the inexperienced Court user, it may not be that easy to defend one. Following on from the article relating to the law on defamation, this article focuses on the statutory defences to a defamation case.

Defences to DefamationThere are a number of statutory defences which relate specifically to defamation actions. The principal statutory defences relevant to defamation actions are as follows:

  1. Truth;

  2. Honest opinion; and

  3. Publication on a matter of public interest.

These defences are considered in further detail below.

1. Defence of TruthNot only would it be unfair, but it would also be unjust for a person to bring a claim for defamation in respect of words said or statements posted which are substantially true. Therefore, it follows that a Claimant should not be able to claim damages for injury to a reputation that they either didn't have or didn't deserve to have in the first place.

As such, section 2 of the Defamation Act 2013 provides an absolute defence to a defamation claim on the basis that the imputation conveyed by the statement complained of is substantially true. In essence, this means that if the Defendant can show that the substance of the statement was true, then they will have a defence to a defamation claim.

As there is a close relationship between defamation actions and the meaning of statements conveyed, it is likely that a hearing will be required to objectively determine the meaning of the statement complained of prior to the Defendant filing his Defence.

The reason for this is that if the words or statement complained of are true, then the Claimant should not be

2. Defence of Honest OpinionSection 3 of the Defamation Act 2013 provides a defence of honest opinion where the Defendant can prove the following:

  • That the statement complained of was a statement of opinion;

  • The statement generally indicated the basis of the opinion; and

  • An honest person could have held the same opinion on the basis of:

    • Any fact that existed at the time the statement was published; or

    • Anything asserted to be a fact in a privileged statement published before the statement complained of.

In order to rely on a defence of honest opinion, the Defendant must show that they actually held that opinion.

A defence based on honest opinion may give rise to a number of uncertainty, especially as it must be proven that an honest person could have held the same opinion on the basis of the facts and evidence available at the time the statements were published. Therefore, if a defamation claim has been brought against you, it is important that you obtain legal advice if you believe that the statements published were truthful or constituted statements of opinion.

3. Defence of Publication on a matter of Public InterestSection 4 of the Defamation Act 2013 introduced a new defence of public interest, which a Defendant may rely on where they can show that:

  1. The statement formed part of a statement on a matter of public interest; and

  2. The Defendant reasonably believed that the publishing of the statement was in the public interest.

There is no singular definition of public interest, so in deciding public interest the Courts will generally consider a wide variety of subject matter which may concern the public life of the community or parts of it.

Likewise, in determining whether the Defendant reasonably believed that the publication of the statement was in the public interest, the Court will have regard to a number of relevant factors, including:

  • Any attempts to verify to verify the truth of the statement;

  • The nature and status of the sources of the information; and

  • The extent to which the Claimant was given an opportunity to respond or to comment on the allegations contained within the statement.

Much like a defence of honest opinion, there may be many difficulties in raising a defence of publication on a matter of public interest. Therefore, it is imperative that you seek advice immediately if you think you may have a defence of publication on a matter of public interest.

For further information please contact Stephen McArdle

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