If you can establish at least one of the following defences to a claim you may be able to avoid liability in full; or in some cases minimise liability.
The most common defences are:
- Honest opinion
- Publication on a matter of public interest
If you can show that the defamatory statement is true or substantially true you will succeed. That is the case even if there are some errors in what you have said; provided they are not material errors in the context of the publication. What is material will vary in each situation and involves a balancing exercise.
This defence protects comments or opinion as opposed to statements of fact. The opinion could be exaggerated or prejudiced provided it has some factual basis. The defence can be lost if the claimant proves that the defendant did not actually believe the opinion.
Publication on a matter of public interest
If you can prove that:
(a) The statement complained of was, or was part of, a statement on a matter of public interest and:
(b) you reasonably believed that publishing the statement complained of was in the public interest you can succeed.
“Public interest” is not defined but has historically included, but not been limited
(i) Detecting or exposing crime or serious financial impropriety.
(ii) Protecting public health and safety.
(iii) Preventing the public from being misled by an action or statement of an individual or organisation.
Crucial in assessing whether this defence applies will be how you have behaved including, the tone of any publication, and any attempts to seek the subjects comment
There are two types of privilege: absolute and qualified.
Absolute Privilege will give you a complete defence regardless of how damaging or malicious your words may be.
It is however very limited and applies to Parliamentary proceedings and papers, affairs of state, fair and accurate reports of court proceedings in the UK, and of certain tribunals; all of which are published contemporaneously.
Qualified privilege will again provide a defence regardless of how damaging words might be; however if a claimant can establish that you made the publication maliciously, you cannot rely on this defence. Generally that will mean that you knew the statement was false, or were reckless as to whether it was true or false.
Trying to define qualified privilege in full has been likened to trying to nail a jelly to a wall – its flexibility which is so useful in practice is what makes this exercise difficult. The classic expression however is that you had a “legal, moral or social duty or interest” in making the publication and the recipients had a corresponding duty or interest in reading or hearing them.
If you cannot succeed with any of these you will likely struggle to defend a claim; unless you can show the limitation period for bring the claim of one year had expired before it was issued. However certain other defences exist and can apply in limited circumstances. In particular if the claim is for a publication on the internet the new defence for website operators under the Defamation Act 2013 may assist.
Offer of amends
If you still cannot find any defence mitigation of liability becomes key. An “offer of amends” is an offer by you to apologise and pay damages and costs. If the claimant rejects the offer, you can rely on the offer as a defence.