Defending against defamation claims

27th April 2018

Defamation Defences

You may be able to deploy at least one of these arguments to demonstrate that you were not breaking the law when making your comments:

  • Truth
  • Honest opinion
  • Publication on matter of public interest
  • Absolute privilege
  • Innocent dissemination.

Truth

Often the most straightforward defence of defamation is to prove that the communication in question stated the truth. This will result in complete and absolute exoneration for the defendant.

Even if the defendant had malevolent intent when communicating the information, and regardless of whether it was in the public’s interest to make it known, the veracity of a claim will still provide a defence.

Often the most straightforward defence of defamation is to prove that the communication in question stated the truth.

The burden of proof rests solely upon the defendant. The information that causes the defamation, if damaging, will often be assumed to be untrue until the defendant proves otherwise.

An exception to using truth as a defence is if the information concerned spent criminal convictions, and the claimant can show that the defendant acted with pernicious intent against the claimant. This would contradict the justice system in its attempts to rehabilitate offenders, who after having taken their punishment still have the offence used against them.

Honest opinion

The Defamation Act 2013 has replaced The ‘honest opinion’ defence with the ‘fair comment’ defence. It can be used as a defence to defamation claims if the defendant can show that:

  1. that the statement in question was an opinion;
  2. that within the statement there was an apparent basis to the opinion; and
  3. the statement is one that an honest person could have held.

A person claiming defamation can defeat this defence if they can demonstrate that the author of the statement complained about did not hold the opinion.

Publication on matter of public interest

It is a defence to a defamation claim if the defendant can show that their comments were made regarding a matter which is of public interest, and that they reasonably believed that publishing the statement was in the public interest.

This defence replaces ‘qualified privilege’ with the passing of the Defamation Act in 2013, and can be used by someone who finds themselves in a position in which it seems a necessity, either moral, legal, social, to impart certain information to another who has an interest.

This covers situations where the information is false but may not seem so at the time to the person accused of defamation, and that they had a duty to report it before going into the process of verifying the information.

Absolute privilege

Absolute privilege allows for complete freedom of speech with no fear of being sued for defamation, and is applied to certain, special situations no matter how malicious or false the information is.

All proceedings in parliament and courts in England and Wales are afforded absolute privilege, as is communication between a solicitor and client.

Innocent dissemination

Innocent dissemination is a defence that can be invoked by those who are accused of libel through the publication of the written word or images.

For this defence to be successful the defendant must prove that they had no knowledge that what they published was defamatory, had no reason to believe that the material would contain libel, and also that this lack of knowledge was not due to negligence on their part.

It is a defence generally only open to those who are peripherally associated with the publication of the libellous material; the author, editor or commercial publisher cannot use a defence of innocent dissemination.

It is a defence that may be used by someone such as Internet Service Providers (ISPs) who act as a medium through which potentially libellous material can be published. It also potentially extends to printers or distributors.

Disclaimer: This information is for general guidance regarding rights and responsibilities and is not formal legal advice as no lawyer-client relationship has been created. Note that the information was accurate at the time of publication but laws may have since changed.

Claiming compensation for reputation defamation

Individuals who believe they have been defamed by someone else can sue for compensation.

April 2018 Learn more

Read more from the DAS Law blog

Protecting your business Farms and trespassing: know your rights

Mark Woodman, solicitor at DAS Law, looks at what farmers need to know about trespassing.

August 2020
Protecting your business Fly tipping: what you need to know

Just 3.6% of fly-tipping and other environmental damage complaints led to penalties in 2019. Mark Woodman looks at the law on fly tipping.

August 2020
Employment disputes , Growing your business , Protecting your business , Setting up a business Farming tenancies: what you need to know

Mark Woodman, Solicitor at DAS Law, looks at what farmers need to know regarding a Farm Business Tenancy.

August 2020
Employment disputes , Protecting your business What businesses need to do when coming out of Covid-19 lockdown

The government recently announced the easing of lockdown restrictions for many businesses across the country. Nevertheless, health & safety and social distancing measures still apply.

July 2020
Employment disputes , Protecting your business 6 tips for giving your business a “spring clean”

As we slowly exit lockdown, this is the ideal opportunity to spend some time giving your business a ‘spring clean’. Hayley Marles has six tips for a clean and tidy SME.

July 2020
Employment disputes , Protecting your business The return to work: a guide for employers

Lucy Kenyon looks at what employers need to consider when returning employees to work.

May 2020
Growing your business , Protecting your business , Setting up a business How to make business decisions ‘virtually’

The Covid-19 pandemic and social distancing bought into sharp focus the need for all organisations to consider their decision making processes.

May 2020
Protecting your business , Setting up a business 4 things you need when you run a business from your home

Running a business from your home could make it easier to balance your home life with your work, but there are a number of extra rules that you will need to consider.

May 2020
Employment disputes , Protecting your business Health and safety and computers

Employers need to manage the risks to their employees of working at computers for long periods of time. DAS Law’s Bethan Mack explains.

May 2020
General advice , Protecting your business , Commercial disputes Understanding the definition of defamation

Defamation can be a complex area of the law but this simple guide from DAS Law’s Damien Field will hopefully help you to understand it a little more clearly.

November 2019
General advice , Protecting your business , Commercial disputes Libel and slander – the distinction in defamation

Defamation is the expression of an untrue insinuation against a person’s reputation. But what is the current law on defamation? DAS Law’s Saiful Ahmed explains.

November 2019
Protecting your business , Goods and services disputes What businesses need to know about selling products

By law, any goods that you sell must be as described, of satisfactory quality, and fit for purpose. If the product fails to meet any of these criteria, the buyer is entitled to a refund.

October 2019
Accidents at work , Protecting your business How to keep your workers safe during Farm Safety Week

Hannah Parsons, Principal Associate Solicitor at DAS Law, looks at what farmers are legally required to do to keep both themselves and their workers safe.

July 2019