On the last occasion we looked at what must be proved in order to bring a successful action for defamation. This week’s edition will focus on the defences available to a person (the “Defendant”) who is accused of defamation.
In an action for defamation, the Defendant may escape liability, even where the person suing (the “Claimant”) has proved the publication of defamatory words, by relying on any of the following major defences:-
(i) Justification or Truth;
(ii) Fair Comment (Honest Opinion);
(iii) Absolute Privilege; and/or
(iv) Qualified Privilege.
i. Justification or Truth
If the statement complained of is entirely or substantially true, this may be a complete defence to an action for defamation. The rationale for this defence is that the law will not permit a Claimant to recover damages in respect of an injury to character which he does not or ought not to have. Put simply, truth doesn’t lower one’s reputation, it corrects it. For example, if the Defendant states that the Claimant is mentally ill, the Defendant will not be liable in defamation if he can prove that the Claimant was confined in a psychiatric hospital.
You should know though that the law presumes that the statement complained of is false. It is therefore for the Defendant who raises the defence of justification to prove that the statement is true.
ii. Fair Comment or Honest Opinion
It is also a defence to an action for defamation for the Defendant to prove that the words complained of were his opinion on a matter of public interest which was fairly and honestly given. A person is therefore not only entitled to hold his own opinion but, provided it is his honest opinion based upon true facts, and related to a matter of public concern he is entitled to express it to others even though it reflects unfavourably upon some other person. The purpose of this defence is to preserve the fundamental right of persons to honestly express their genuine opinions on matters of public interest; however wrong or exaggerated or prejudiced those opinions may be. This is vital to the functioning of a democratic society.
Therefore, to succeed in a defence of fair comment, it must be proved that:-
(a) the matter commented on is of public interest. For example, the affairs of the Government of Anguilla; the administration of justice; church matters; the public conduct of those who hold or seek public office;
(b) the words complained of are comment or opinion on facts and not assertions of fact. For example, if the Defendant alleges that a politician has been guilty of disgraceful conduct or has been actuated by corrupt or dishonourable motives, and does not state what those disgraceful acts are or give any grounds from which such motives can reasonably be inferred, his allegations are allegations of fact, and not his opinion. He cannot rely on the defence of fair comment;
(c) the comment was based upon true facts. The principle of freedom of speech does not confer a licence to make unfounded attacks upon the integrity and moral character of individuals. You therefore cannot invent untruths about a man and then comment on them.
(d) the comment was honestly made. Where the Defendant has expressed his genuine opinion on the matter, he will have a defence even if his opinion may have been biased, prejudiced, exaggerated or irrational. The defence of fair comment will however fail if the Claimant can prove that the Defendant had a corrupt or wrong motive or made use of the occasion for some indirect purpose.
PRIVILEGE
The law of defamation recognises that in some circumstances the public interest requires that a person should be allowed to speak freely without the fear of liability for a defamatory statement even though the words complained of cannot be proved to be true or defended as fair comment. This protection or “privilege” is of two kinds:-
(a) absolute; and
(b) qualified.
iii. Absolute Privilege
Where the words complained of are published on an occasion of absolute privilege, it does not matter that the words are false or even published maliciously. The defence of absolute privilege therefore deprives the Claimant of any remedy in an action for defamation even in respect of a malicious and untrue publication that caused real damage. Occasions of Absolute Privilege
The defence of absolute privilege is only available in the following circumstances:-
(a) statements made during the course of proceedings of our House of Assembly.
No action will lie against a member of the House of Assembly for any defamatory words spoken in the course of parliamentary debate or proceeding;
(b) statements made by any judge, magistrate, juror, lawyer, party to an action or witness in the course of and with reference to court proceedings or before tribunals;
(c) communications between lawyers and their clients; and
(d) statements made by one officer of State to another in the course of official duty.
iv. Qualified Privilege
Qualified privilege applies to a much wider variety of situations in which it is in the public interest that persons should be able to state what they honestly believe to be true without fear of legal liability. The protection is not absolute; it is qualified and as such will be lost if it is shown that the Defendant was actuated by malice in publishing the words complained of.
Occasions of Qualified Privilege
The circumstances which may give rise to such an occasion of qualified privilege are
very varied and may change as the requirements of public policy change. These
occasions include:-
(a) Statements made in the performance of a legal, moral or social duty. Some
examples are:-
? Where a former employer of the Claimant gives a damaging reference as to the Claimant’s character to a prospective employer;
? Where the Defendant makes a report to the police, accusing the Claimant of having committed a crime; and
? Where a father or near relative warns a young man as to the character of an associate or where a near relative or close friend of a woman warns
her about the character of a man she proposes to marry.
(b) Statements made to the proper authorities in order to obtain redress for public or private grievances. For example, a letter from a member of the public to the
Minister of Health complaining of a malpractice at the hospital;
(c) Statements made by a Defendant in self-defence; that is, replies to an attack made by the Claimant;
(d) Reports of Parliamentary proceedings;
(e) Fair and accurate newspaper reports and broadcasts of proceedings before a court or judicial tribunal.
It is important to note that our courts have held that defamatory statements published in the media in the course of a political discussion are not protected by qualified privilege.
Remedies for Defamation
An action for defamation is in essence an action intended to vindicate the Claimant’s reputation and to compensate him for any harm done. Damages (monetary compensation) are the primary remedy by which such ends are met. The Claimant can however also obtain an injunction, in appropriate circumstances, to prevent repetition of the defamation.
THE LAW & YOU is a public legal education column written fortnightly by KEITHLEY LAKE & ASSOCIATES, Attorneys-at-Law, The Law Building in the Valley (tel:264-497-2069). The views expressed herein are not, and are not intended to be and should not be taken as, a substitute for legal advice. Please send your comments and questions to thelawandyou@anguilla-attorney.com.
