#6562 - Defamation Defences - Intentional Torts

DEFAMATION DEFENCES 104 | INTENTIONAL TORTS DEFENCES * Plaintiff = burden of proving the publication contains imputations that defame Defendant = burden of proving the publication is defendible * Arguable defences: * Truth * Qualified privilege: s30 - Justification (truth) s25 * Qualified privilege: Common - Polly Peck Law - Contextual truth: s26 * Innocent dissemination: s32 * Honest Opinion: s31 * Triviality: s33 * Fair Comment: Common Law * Absolute Privilege s27 * Publication of Public documents: s28 * Fair Report of Proceedings of Public Concern: s29 Defamation Act s24 24 Scope of defences under general law and other law not limited (1) A defence under this division is additional to any other defence or exclusion of liability available to the defendant apart from this Act (including under the general law) and does not of itself vitiate, limit or abrogate any other defence or exclusion of liability. (2) If a defence under this division to the publication of defamatory matter may be defeated by proof that the publication was actuated by malice, the general law applies in defamation proceedings in which the defence is raised to determine whether a particular publication of matter was actuated by malice. INTENTIONAL TORTS | 105 TRUTH (JUSTIFICATION) * * Generally, true statements are not defamatory Truth (justification) is a complete defence Defamation Act s25 "It is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true" * * * Truth (justification) = (on the balance of probablilities) the matter is substantially true o Alexander v NE Rys D onus: show the statement is true in all but minor particulars Objective Test: o Defamation is judged objectively. Therefore: SS? D must show truth of the meaning that a reasonable person would infer SS? If the statement is false but D believes it true, D fails SS? Also: Can't discharge burden of proving truth of statement by prefacing remarks with "It is rumoured" or "I was told that" or "In my opinion" SS? If statement is true, fact that it was made maliciously is irrelevant Substantial truth: o True in substance or not materially different from the truth' SS? Literal vs substance; Minor inaccuracies SS? E.g. you say that B has been convicted and imprisoned (but you don't mention that the conviction was later quashed) - this is not 'substantially' true - this is not a 'minor' inaccuracy * Alexander v NE Railway: o it was commented that a person was convicted of travelling in a train with a ticket, and was fined PS9 and imprisoned for 3 weeks SS? In fact: they were only imprisoned for 2 weeks SS? Was this defamation (or the substantial truth)? o Determining whether a statement is substantially true involves a long 'fact finding' process SS? Habib v Nationwide News 106 | INTENTIONAL TORTS Proof: * To 'show' truth, witnesses and documents needed * Objectively provable facts; * Proof of convictions: Defamation Act s42 Proof that the person was convicted is conclusive evidence that the person committed the offence * Includes a finding of guilt * Does not apply where a conviction has been quashed or set aside, or the person has been pardoned Howden v "Truth" and "Sportsman" * D reported that the P was convicted of the crime of conspiracy to defraud and was sentenced to 15 months prison * But conviction and sentence quashed * HELD: No defence to defamation * Could not prove truth of "sting" - i.e. overall, sting untrue Partial Justification: common sting & contextual truth: * Because the focus of defamation is the action harm done to the P's reputation, it is a defence for the defendant to show that the 'sting' (the overall gist) of the a defamatory statement is true * Look for: 1. When there are multiple imputations within the one publication, some of which are true and other which are not 2. The P pleads the false imputations and ignores those that are true 3. What was the impact of the publication, when read as a whole The Polly Peck Principle SCENARIO 1 - If statement carries imputations A, B, C and D and all carry the same common sting - And A & D true; B & C untrue - the sting/gist is still true because of A & D INTENTIONAL TORTS | 107