Post by Graham on Oct 17, 2016 13:12:31 GMT
Defamation & Defences
There has been a bit of talk about what can safely be posted and what cannot be posted on a website/forum. Most things we talk about should be no problems, but the problems can arise when we decide to criticise a person or an organisation. It is here that we can trip up and slip into defaming someone or some entity.
There are two types of defamation, slander the spoken word and libel the written word and it is the latter that affects us here.
The law that controls this is the Defamation Act 2013 and it lays out three defences against a claim of defamation:
That what is being said or written is True. What used to be called Verifiable Truth. I will leave section 2 of the Act to speak for itself, but will expand to the best of my ability if there is a specific query.
Section 2 Truth
(1) It is a defence to an action for defamation for the defendant to show that the imputation conveyed by the statement complained of is substantially true.
(2) Subsection (3) applies in an action for defamation if the statement complained of conveys two or more distinct imputations.
(3) If one or more of the imputations is not shown to be substantially true, the defence under this section does not fail if, having regard to the imputations which are shown to be substantially true, the imputations which are not shown to be substantially true do not seriously harm the claimant's reputation.
(4) The common law defence of justification is abolished and, accordingly, section 5 of the Defamation Act 1952 (justification) is repealed.
Next comes what I think is the most difficult to get one’s head around, Honest Opinion. Now we all think that everything we say is our honest opinion. However as you will see the Act for it to be a valid defence requires that it is a statement of opinion and that in general or specific terms the statement has to state the basis for the opinion. So it is not good just stating that in my opinion X is wrong and a pratt. You have to also state why in your opinion X is wrong and a pratt. It is no good just typing “This is my opinion” or something similar before or after the post.
Section 3 Honest opinion
(1) It is a defence to an action for defamation for the defendant to show that the following conditions are met.
(2) The first condition is that the statement complained of was a statement of opinion.
(3) The second condition is that the statement complained of indicated, whether in general or specific terms, the basis of the opinion.
(4) The third condition is that an honest person could have held the opinion on the basis of—
(a )any fact which existed at the time the statement complained of was published;
(b )anything asserted to be a fact in a privileged statement published before the statement complained of.
(5) The defence is defeated if the claimant shows that the defendant did not hold the opinion.
(6) Subsection (5) does not apply in a case where the statement complained of was published by the defendant but made by another person (“the author”); and in such a case the defence is defeated if the claimant shows that the defendant knew or ought to have known that the author did not hold the opinion.
(7) For the purposes of subsection (4)(b) a statement is a “privileged statement” if the person responsible for its publication would have one or more of the following defences if an action for defamation were brought in respect of it—
(a) a defence under section 4 (publication on matter of public interest);
(b) a defence under section 6 (peer-reviewed statement in scientific or academic journal);
(c) a defence under section 14 of the Defamation Act 1996 (reports of court proceedings protected by absolute privilege);
(d)a defence under section 15 of that Act (other reports protected by qualified privilege).
(8)The common law defence of fair comment is abolished and, accordingly, section 6 of the Defamation Act 1952 (fair comment) is repealed.
Then comes a difficult one sometimes used by newspapers etc and I can see some on here thinking it is the perfect defence, Publication on matter of public interest. Basically it has to be proved that the statement was in the public interest, but I will leave section 4 to explain itself.
Section 4 Publication on matter of public interest
(1) It is a defence to an action for defamation for the defendant to show that—
(a) the statement complained of was, or formed part of, a statement on a matter of public interest; and
(b) the defendant reasonably believed that publishing the statement complained of was in the public interest.
(2) Subject to subsections (3) and (4), in determining whether the defendant has shown the matters mentioned in subsection (1), the court must have regard to all the circumstances of the case.
(3) If the statement complained of was, or formed part of, an accurate and impartial account of a dispute to which the claimant was a party, the court must in determining whether it was reasonable for the defendant to believe that publishing the statement was in the public interest disregard any omission of the defendant to take steps to verify the truth of the imputation conveyed by it.
(4) In determining whether it was reasonable for the defendant to believe that publishing the statement complained of was in the public interest, the court must make such allowance for editorial judgement as it considers appropriate.
(5) For the avoidance of doubt, the defence under this section may be relied upon irrespective of whether the statement complained of is a statement of fact or a statement of opinion.
(6) The common law defence known as the Reynolds defence is abolished.
There are special regulations coming from the Act that give website/forum owners some special options. They basically mean that if the site owner takes down a claimed defamation that should be the end of the matter or if the supply the complainant with the details of the poster so they can be sued, that take the owner out of the firing line.
There has been a bit of talk about what can safely be posted and what cannot be posted on a website/forum. Most things we talk about should be no problems, but the problems can arise when we decide to criticise a person or an organisation. It is here that we can trip up and slip into defaming someone or some entity.
There are two types of defamation, slander the spoken word and libel the written word and it is the latter that affects us here.
The law that controls this is the Defamation Act 2013 and it lays out three defences against a claim of defamation:
That what is being said or written is True. What used to be called Verifiable Truth. I will leave section 2 of the Act to speak for itself, but will expand to the best of my ability if there is a specific query.
Section 2 Truth
(1) It is a defence to an action for defamation for the defendant to show that the imputation conveyed by the statement complained of is substantially true.
(2) Subsection (3) applies in an action for defamation if the statement complained of conveys two or more distinct imputations.
(3) If one or more of the imputations is not shown to be substantially true, the defence under this section does not fail if, having regard to the imputations which are shown to be substantially true, the imputations which are not shown to be substantially true do not seriously harm the claimant's reputation.
(4) The common law defence of justification is abolished and, accordingly, section 5 of the Defamation Act 1952 (justification) is repealed.
Next comes what I think is the most difficult to get one’s head around, Honest Opinion. Now we all think that everything we say is our honest opinion. However as you will see the Act for it to be a valid defence requires that it is a statement of opinion and that in general or specific terms the statement has to state the basis for the opinion. So it is not good just stating that in my opinion X is wrong and a pratt. You have to also state why in your opinion X is wrong and a pratt. It is no good just typing “This is my opinion” or something similar before or after the post.
Section 3 Honest opinion
(1) It is a defence to an action for defamation for the defendant to show that the following conditions are met.
(2) The first condition is that the statement complained of was a statement of opinion.
(3) The second condition is that the statement complained of indicated, whether in general or specific terms, the basis of the opinion.
(4) The third condition is that an honest person could have held the opinion on the basis of—
(a )any fact which existed at the time the statement complained of was published;
(b )anything asserted to be a fact in a privileged statement published before the statement complained of.
(5) The defence is defeated if the claimant shows that the defendant did not hold the opinion.
(6) Subsection (5) does not apply in a case where the statement complained of was published by the defendant but made by another person (“the author”); and in such a case the defence is defeated if the claimant shows that the defendant knew or ought to have known that the author did not hold the opinion.
(7) For the purposes of subsection (4)(b) a statement is a “privileged statement” if the person responsible for its publication would have one or more of the following defences if an action for defamation were brought in respect of it—
(a) a defence under section 4 (publication on matter of public interest);
(b) a defence under section 6 (peer-reviewed statement in scientific or academic journal);
(c) a defence under section 14 of the Defamation Act 1996 (reports of court proceedings protected by absolute privilege);
(d)a defence under section 15 of that Act (other reports protected by qualified privilege).
(8)The common law defence of fair comment is abolished and, accordingly, section 6 of the Defamation Act 1952 (fair comment) is repealed.
Then comes a difficult one sometimes used by newspapers etc and I can see some on here thinking it is the perfect defence, Publication on matter of public interest. Basically it has to be proved that the statement was in the public interest, but I will leave section 4 to explain itself.
Section 4 Publication on matter of public interest
(1) It is a defence to an action for defamation for the defendant to show that—
(a) the statement complained of was, or formed part of, a statement on a matter of public interest; and
(b) the defendant reasonably believed that publishing the statement complained of was in the public interest.
(2) Subject to subsections (3) and (4), in determining whether the defendant has shown the matters mentioned in subsection (1), the court must have regard to all the circumstances of the case.
(3) If the statement complained of was, or formed part of, an accurate and impartial account of a dispute to which the claimant was a party, the court must in determining whether it was reasonable for the defendant to believe that publishing the statement was in the public interest disregard any omission of the defendant to take steps to verify the truth of the imputation conveyed by it.
(4) In determining whether it was reasonable for the defendant to believe that publishing the statement complained of was in the public interest, the court must make such allowance for editorial judgement as it considers appropriate.
(5) For the avoidance of doubt, the defence under this section may be relied upon irrespective of whether the statement complained of is a statement of fact or a statement of opinion.
(6) The common law defence known as the Reynolds defence is abolished.
There are special regulations coming from the Act that give website/forum owners some special options. They basically mean that if the site owner takes down a claimed defamation that should be the end of the matter or if the supply the complainant with the details of the poster so they can be sued, that take the owner out of the firing line.
