Defences------------A----------- Justification or truth

Defamatory statements are presumed to be untrue, unless the D proves otherwise. Truth (or justification) is
thus seen as a defence. It is irrelevant that the D's intention was malicious (contrast fair comment and
qualified privilege). Partial justification is not a defence. Justification.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.
Alexander v North Eastern Railway Co (1865)
Ds published at their stations a notice stating that the C had been convicted of riding in a train without a
ticket and sentenced to a fine of 1 and the alternative of three weeks' imprisonment in default of payment.
Held: The fact that the term of imprisonment was two weeks did not prevent the defence of justification
from succeeding, and it became a question for the jury whether the notice was substantially true.
Wakley v Cooke (1849)
D must, however, justify every innuendo and not simply the main allegation burden is therefore on the D to
justify the substantial truth or 'sting' of the allegations. To achieve this, the D may also wish to raise
matters with a 'common sting' in support of his or her claim of justification. Express Newspapers plc
[1999] court held that the term 'libellous journalist' indicated that the C was in the habit of libelling people
and even proof that the C had lost a libel case did not serve to justify this innuendo
B---------------Fair comment Defence serves to protect Ds who seek to criticise Cs, provided they act
fairly, honestly and base their comments on true facts. It clearly supports freedom of expression, but within
a controlled environment. In looking at this defence, we can identify some of the tensions which exist
between allowing Ds, and particularly journalists, the right to express criticism and the right of Cs to
protect their reputation from malicious comment.
Fair comment Defence 3 requirements
I. the statement must be in the public interest :note, however, that the public interest does not
translate into any topic which the public # is interested in, but matters in which people generally
are legitimately interested or concerned: see London Artists v Littler
II. it must be a comment on true facts
III. it must be honest and fair.
London Artists v Littler [1969] D wrote a letter to some actors in a play who had all given notice to quit
at the same time accusing them of a plot to force the end of a successful play. So many actors giving notice
at the same time was apparently an almost unheard of event. They sued him. He pleaded justification and
then withdrew it as it became clear that the actors had withdrawn for different reasons and not in order to
end the play. The D also argued fair comment on a matter in the public interest.
1. Court laid down this test:
2. Was the comment made on a matter of public interest,
3. Was the statement an expression of fact or opinion,
4. If opinion, are the underlying facts true and contained in the article, would a fair man make the
same comment.
London Artists v Littler [1969] dcision relative to TEST
Regarding (1), they held that whenever a matter affects people at large it can be held to be in the public
interest. Regarding (2) they asked whether the Defendant saying that there was a conspiracy to end the play
was an expression of opinion or fact. The fair comment defence only applies when the statement was an
opinion. In order to answer this it was necessary to look at the manner in which the statement was said,
were the words like 'it seems' or 'it may be' used. If the Defendant says "X is happening", this would be a
statement of fact as in the present case. If the statement is an opinion rather than a statement of fact,
another requirement ( which was treated as part of (2) in London Artists but is better treated separately) is
the basis of truth for the comment. Are the facts that the opinion is based on true? If the court didn't ask
this question then Defendants could get away with calling an obvious lie an opinion
C---------------Absolute privilege
Absolute is the stronger form of privilege and applies on occasions where the need to protect freedom of
speech is so important as to create an absolute defence to any action for defamation, irrespective of the
motives or words of the author. Examples include statements made in Parliament by MPs (Hamilton v Al
Fayed [2000], reports and papers ordered to be published by either house of Parliament, judicial
proceedings, fair and accurate contemporaneous reports of states court proceedings communications
between high officers of state
D-------------Qualified privilege
weaker form of privilege. It will only apply on occasions where it is desirable that freedom of speech
should be protected, but not where the author is activated by malice: see Horrocks v Lowe [1975]
whether the defendant's dominant motive in making the defamatory communication was other than to
serve the purpose of the privilege (or fair comment).
Qualified privilege at common law Two requirements
That X had a duty or interest in communicating the information to Y. This may be legal, moral or social. Y
has a corresponding interest in receiving the information in question.
Watt v Longsdon [1930]
D showed a letter to the C's wife that accused the C of several unflattering things. The C sued the D for
defamation. The D claimed that he was under a duty to show the C's wife the letter.
Watt brought suit against Longsdon for three separate counts of defamation. First, in April 1928, Browne,
the company's manager in Casablanca, wrote a letter to Longsdon alleging Watt failed to pay a liquor bill
and had sexual relations with a mistress. In May 1928, Longsdon showed the letter to Singer, chairman of
the board of directors of the company. This is the first alleged defamatory act. Next, Longsdon wrote a
reply letter to Browne expressing his own negative views about Watt and requesting Browne obtain sworn
statements as to the letter's contents. This is the second alleged defamatory act. Finally, without receiving
sworn statements from Browne, Longsdon showed Browne's letter to Watt's wife, and she filed for divorce.
The showing of the letter to Watt's wife is the third alleged defamatory act. Although Longsdon did not
defend the truth of the letters, the trial judge issued judgment for Longsdon on the ground that the letters
were privileged. Watt appealed.
Reynolds v Times Newspapers Ltd [2001]
HL firmly rejected any general head of qualified privilege. The court would instead look at each case
individually. However, Lord Nicholls did give some guidance. In future, courts should consider a number
of factors (which are not exhaustive) in deciding whether a duty to publish political discussion could be
established, namely
1.the seriousness of the allegation - the more serious the charge, the more the public is misinformed, and
the individual harmed, if the allegation is not true
2.the nature of the information - is it a matter of public concern?
3. its source
4. what steps had been taken to verify the information
5. the status of the information, that is, how reliable is the report?
6. the urgency of the matter
7. whether comment is sought from the claimant
8. the tone of the article
9. whether the gist of the claimant's side of the story has been told
10. the general circumstances and timing of the publication.

test is one of 'responsible journalism' and it is for the newspaper, with reference to the 10 criteria listed
above, to demonstrate to the court that they deserve the defence of qualified privilege.

fair comment, qualified and absolute privilege
Qualified privilege mainly applies when the person who makes the statement is seen to have a duty to do
so. This occurs mainly in employment situations that deal with issues such as safety and plagiarism.
Qualified privilege rarely applies to the media. Absolute privilege, on the other hand, allows journalists to
publish statements made in certain settings, such as in court, even if they are defamatory. The fair
comment defence arises when the person making the defamatory statement is stating an opinion, rather
than fact. However, all of these defences can be overridden if it is shown that the statement was published
with malice.