DEFAMATION

DEFENCES

There are THREE specialized defences to the Tort of Defamation:

 Truth

 Fair Comment

 Privilege – absolute and qualified

TRUTH (JUSTIFICATION)

Truth (justification) is a complete defence to an action for defamation.

In an action for defamation, the plaintiff is not required to prove that
the statement made by the defendant is false in order to succeed
because the law presumes this. However, if the defendant can show
that the statement is true, then even if he was actuated by ill-will or
spite, he can plead the defence of truth.

7. In an action for libel or slander in respect of words containing two or

more distinct charges against the plaintiff, a defence of justification
shall not fail by reason only that the truth of every charge is not
proved if the words not proved to be true do not materially injure the
plaintiff's reputation having regard to the truth of the remaining
charges.

To succeed, the defendant need not prove that the statement was true
in its entirety just that the statement was true in substance. Thus,
minor inaccuracies will not vitiate the defence, however this is a
matter for the jury:

Alexander v North Eastern Rly Co. (1865) 122 All E.R. 1221
Here the D published a notice that P had been sentenced to a fine of
£1.00- or 3-weeks imprisonment in default of payment because he
traveled on a train without the appropriate ticket. The alternative was
in fact 2 weeks imprisonment and not 3.

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Held: that the defence of justification could succeed because the
statement was
substantially true.
However, arguably where the allegation imputes the commission of a
criminal offence, the D may be required to prove the commission of
the offence as strictly as if putting forward a case for the prosecution
of P1.
The standard of proof of truth is on a balance of probabilities and D
should not plead truth defence unless he/she has a good reason to
believe the defence will succeed, since if the Court finds that the
statement is in fact NOT true and thus the defence fails, this will
usually aggravate the damages against the Defendant.

FAIR COMMENT

8. In an action for libel or slander in respect of words consisting partly

of allegations of fact and partly of expression of opinion, a defence of
fair comment shall not fail by reason only that the truth of every
allegation of fact is not proved if the expression of opinion is fair
comment having regard to such of the facts alleged or referred to in
the words complained of as are proved.

The defence of fair comment is premised on the fundamental right to

freedom of expression and the fact that in a modern society, honest
criticism is a recognized corollary to the efficient working of any public
institution or an expected part of the life of private entities or
individuals who make themselves or their work, the object of public
interest. As such the defence is available to all who comment fairly on
matters which may be said to be of legitimate concern to the public.

Requirements:
 Matter commented on must be of public interest

1
Halliday v Baronville (1977) 2 OECSLR 138

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  Statement must be a comment or opinion based on observation
or inference from facts
 Assertion of fact must be true and relevant
 Statement must be based on true facts
 Statement must be honestly made
 Statement must not be actuated by malice

Matter commented on must be of public interest

The defence is wide in scope. Public interest has never been defined,
but, in London Artists Ltd v. Littler [1969] 2 All ER 193 at 198 Lord
Denning MR said that it is not to be confined within narrow limits. He
continued:
“Whenever a matter is such as to affect people at large, so
that they may be legitimately interested in, or concerned
at, what is going on, or what may happen to them or
others; then it is a matter of public interest on which
everyone is entitled to make fair comment.”

It is for the judge to decide whether the matter commented on was in

fact a matter of public interest.

Matters of public interest include:

 The justice system
 The affairs of parliament
 The management of public institutions such as hospitals,
prisons, schools, universities, ministries of government
 The public conduct of those who hold office or seek office
or positions of public trust i.e., Ministers of Government,
the Governor of the Bank of Jamaica, the Prime Minister,

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 persons nominated to represent constituencies in general
elections
 The conduct of private businesses which affect the
community at large i.e., JPS, Digicel, Banks
 Published books and other literary matter, and public
theatrical, artistic or musical performances
 Anything which may fairly be said to invite comment of
challenge on public attention

Statement must be a comment or opinion based on

observation or inference from facts and not an assertion of
facts

The rationale behind this requirement was aptly stated in the case of
Christie v. Robertson 2

“[to] state accurately what a man has done and then to say that
such conduct is dishonourable or disgraceful, is comment which
may do no harm, as everyone can judge for himself whether the
opinion expressed is well- founded or not.”

For this reason, the statement must appear on its face to be a

comment or opinion or an inference/deduction/conclusion based on
facts and not a statement of fact itself.
Clapham v. Daily Chronicle 1944 LRBG 41

A review in a concert in D’s newspaper entitled “London Pianist

disappointing” commented that the pianist made several mistakes
which had the audience sulking. On being sued by the P, D argued fair
comment.
2
(1889) 19 N.S.W.L.R. 157

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Held: that the defence of fair comment was proved since
members of the audience had expected P to be a good musician and
were in fact disappointed as seen in the visible signs of disappointment
and ‘hardly any applause’

In determining whether a statement is a comment or assertion of fact

the Court is not allowed to look at extrinsic evidence outside of the
words expressly used by D or the implication that flows naturally
therefrom thus in Telnikoff v. Matusevitch [1992] 2 A.C. 343 3
(http://www.uniset.ca/other/cs3/19922AC343.html) the House of
Lords held that in an action for defamation where the defence of fair
comment was pleaded in relation to a letter written in response to an
article in an article published in a newspaper, the Court was confined
to the words stated in the letter and could not look at extrinsic
evidence such as the initial article, to determine whether the letter was
in fact a comment or assertion of fact.

If the statement is an assertion of fact, then D will have to rely on the

defence of truth.

Statement must be based on true facts

A statement or comment not based on true facts shall not fail only
because the defendant fails to prove the truth of all relevant assertion,
provided that such assertions are proved to be true are relevant.

Forde v. Shah [1990] 1TTLR 73

3
[1992] 2 A.C. 343 (http://www.uniset.ca/other/cs3/19922AC343.html)

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An article alleged that a member of the TT government was trembling
in his boots as he had an affair with one Mrs. S who was romantically
linked with a person who previously died of Aids.
The statement was in fact untrue as the individual did not die of AIDS
and there was no affair.
Held: the statement on which the comment was premised being
untrue the defence of fair comment failed.

Statement must be honestly made

“Honest” means “genuinely held”. Provided the D is expressing his
genuine opinion or his
“honest expression of the opinion which he held on the facts truly
stated” then D will have a defence.

It does not matter if the opinion may have been biased, prejudiced,
irrational or exaggerated as stated in Mc Quire v. Western Morning
News Co. Ltd. a critique that a play was “dull, vulgar and degrading”
was one that could be capable of being a fair comment.

However, defamatory aspersions on P’s character, will not be protected

by the defence of fair comment per Barrow v. Caribbean
Publishing Co. Ltd. Here the Barbados High Court held, that by using
the words “truth and honestly are irrelevant considerations, if
considerations at all” in relation to the reputation of the Prime Minister
of Barbados, fell outside the bounds of fair comment and constituted a
personal attack on the Prime Minister was not protected by the
defence.

Statement must not be actuated by malice

Malice means some indirect, improper, or evil motive.

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If P can show that D does not in fact hold the opinion which he has
expressed, then this is normally the strongest evidence of malice. In
Thomas v. Bradbury Agnew & Co. Ltd. the Court held that a book
reviewer was in fact actuated by malice and his review of P’s book
“Punch” was not a fair comment, given his review, his demeanour in
the witness box and elsewhere all of which demonstrated clear hostility
towards P.

However, compare the above with Clapham v. Daily Chronicle

(supra) where the defence of fair comment succeed

PRIVILEGE
This defence recognizes that there are instances where freedom of
expression and communication without fear, is more important than
the protection of a person’s personal reputation. The privilege can be
absolute or qualified
Absolute Privilege

The common law provisions of absolute privilege

Absolute privilege covers cases in which complete freedom of
communication is regarded of such paramount importance that no
action for defamation can be entertained at all. It is a complete
defence and a person defamed on an occasion of absolute privilege
has no legal redress.

Absolute privilege covers:

 Statements in Parliament including Reports, Papers and
Proceedings ordered to be published by the Parliament
 Statements made in the course of Judicial Proceedings and
Reports of Judicial proceedings

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Whatever is stated whether orally or in documentary form in judicial
proceedings is absolutely privileged. The privilege is wide and its does
not matter who makes the statement, whether the judge, jury, the
parties, the Attorneys or the witnesses and provided the statement by
the witness is made with reference to the subject matter of the
proceedings, it matters not how false or malicious the statement may
be it will be protected. Thus, in Bodden v. Brandon, though the
words spoken by the Attorney at Law to the juror were in fact
defamatory, “I challenge you because you are one of the deceased’s
girlfriend’s” - where the juror was a married woman - because they
were said during the course of judicial proceedings, they were
protected privilege.
However, the protection only covers statements relevant to the
proceedings.

Fair and accurate report of any judicial proceedings will also be

protected provided the report is contemporaneous to the proceedings.

 Communications between Officers of the State

Per Chatterton v. Secretary of State for India, communication

between Officers of the State in the course of their official duty is
absolutely privileged, since allowing “judicial inquiry into such matters
tend to deprive officers of the state of their freedom of action in
matters concerning the public weal.”

Chatterton v. Secretary of State for India [1895] 2 Q.B. 189

A letter from the UK Secretary of State for India to his Parliamentary

Under-Secretary contained information regarding the removal of P’s

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name from a list of half-pay officers. This information was provided as
an answer to a question raised in parliament. P brought an action for
defamation which was dismissed on the ground that the
communication was absolutely privileged.

Qualified Privilege
Note that there are statutory provisions and provisions at
common law.

9 . 4 1) Subject to the provisions of this section, the publi- cation in

a newspaper of any such report or other matter as is mentioned
in the Schedule shall be privileged, unless the publication is
proved to be made with malice.

Common law Qualified Privilege

Qualified privilege applies to situations where it is in the public interest
that persons should be able to state what they honestly believe to be
true without fear of incurring legal liability.

While the varieties of situations are wide, some of the more popular
occasions of qualified privilege include:

 Statements made in the performance of a legal, moral, or

social duty
To qualify for this protection D must show that he is under a legal,
moral, and social duty to communicate the defamatory matter
about P to a third party AND that the third party has an interest
in receiving the information.
Whether such a duty exists is a question of law to be decided by the
judge. Where the duty claimed is a moral or social duty the test is
usually “would the great mass of right-minded men in the position of D

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have considered it their duty under the circumstances to make the
communication?” Employer/employee type relationships, or the
reporting of a criminal offence to the police or appropriate authorities
are examples of situations where such a duty exists.
Interest is usually related to a business or financial interest but “so
long as the interest is of so tangible a nature that for the common
convenience and welfare of society it is expedient to protect it, it will
[be considered a sufficient interest].”

Watt v. Longsdon [1930] 1 K.B. 130

D a company director, made a report to the chairman of the company
to the effect that one of the company’s employees sent to Sri Lanka
had numerous affairs there and was participating in other immoral and
illicit conduct. D made the same report to the employee’s wife. The
allegations against the employee were false and he sued for
defamation. D pleaded qualified privilege.
Held:
D’s report to the chairman was privileged as the duty to make
the report about P arose from the fact of employment at the
same company and that the chairman might in the future be
asked to give a testimonial regarding P’s conduct and the
information would be relevant. However, D’s communication of
the report to the wife was not privileged as even though there
are situations where friends may owe a duty or have an interest
in informing a wife about statements about her husband, in this
case where the information came from doubtful sources, D had
no interest or duty in doing so.
 Statements made to the proper authorities in order to
obtain redress for grievances

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The grievance referred to here could be private – i.e., affecting only
one individual or public i.e., affecting the general public and as such
any member of the public has an interest in bringing it to the attention
of the authorities. For example: a complaint to the Minister of Health
regarding specific breaches at a public health facility.

 Statements made in self defence

If in order to repel an attack on his character or reputation D makes a
defamatory statement about P, then this will be protected by qualified
privilege. In Osborn v. Boulter4 the Court held that a statement that P
had watered down his beer though defamatory was protected, to repel
an allegation that D supplied P with beer of poor quality.

 Fair and accurate report of legislative or court

proceedings
In order to be protected the report must be fair and accurate. If the
report makes statements which are not true, then the defence is not
available.

4
[1930] 2 K.B. 226

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