The Defamation Act 2009 and Defences

In the first of our blog posts we look at the Defamation Act 2009 (“the Act”) and what is meant by the new “tort of defamation”. We also consider the defences available to a defendant where a defamatory statement is alleged. In tomorrow’s blog post we will look at the remedies available to a person where defamation is alleged and other relevant issues.The Defamation Act came into operation on 1st January 2010, the purpose of which was to revise the law on defamation and repeal the Defamation Act of 1961. The Act has now shifted the burden of proof from the plaintiff to the defendant to prove the truth of a defamatory statement. The definition of “periodical” for the purposes of publication includes as expected newspapers, magazines etc but also “any version thereof published on the internet or by other electronic means”. This definition brings the Act in line with the age of social media which has exploded in recent years.Tort of Defamation and Defamatory StatementsSection 6(1) of the Act abolished the tort of libel and slander and created a new tort of defamation. Section 6(2) provides that the tort of defamation consists of the “publication by any means, of a defamatory statement concerning a person to one or more than one person (other than the first mentioned person) and “defamation” shall be construed accordingly”.Section 2 of the Act defines a “defamatory statement” as a “statement that tends to injure s person’s reputation in the eyes of reasonable members of society, and “defamatory” shall be construed accordingly”.Therefore in order to prove defamation, three elements must be present:1. Publication2. Identification3. Defamatory EffectIt can now be seen that the test is an objective test which is looked at through the eyes of reasonable members of society and focuses on injury to a person’s reputation.Section 6(3) provides that a defamatory statement will concern a person if it could reasonably be understood as referring to him or her.Section 9 provides that a person has only one cause of action in respect of the publication of a defamatory statement. Section 11 further provides that a person has only one cause of action in respect of multiple publication unless a court is satisfied that in the interests of justice, leave should be granted to bring more than one defamation action.DefencesThe Act sets out the defences to defamation on a statutory footing and include the following:1. Section 16 – Truth2. Section 17 – Absolute Privilege3. Section 18 – Qualified Privilege4. Section 20 – Honest Opinion5. Section 22 – Offer to Make AmendsSection 22 provides for an offer to make amends which is designed to encourage litigants to resolve their differences without recourse to litigation. In order to make an offer to make amends it must (a) be in writing (b) state that it is an offer to make amends for the purposes of Section 22 (c) state whether an offer is in respect of the entire statement or part of a statement or a particular defamatory meaning only.An offer to make amends means an offer to (a) make a suitable correction of the statement concerned and a sufficient apology (b) publish the correction and the apology and (c) pay compensation or damages and costs, as agreed. The offer can be made at any time before the filing of a defence and it can also be withdrawn before it is accepted. If withdrawn, a new offer to make amends can be made. If the plaintiff rejects an offer to make amends, the offer will act as a defence against any action taken by the plaintiff unless it can be shown the defendant knew or ought reasonably to have known at the time of publication, that it referred to the plaintiff or was likely to be understood as referring to the plaintiff.6. Section 24 – ApologyThe offer of an apology can be used in evidence in relation to the mitigation of damages however the Act makes it clear at subsection (3) that that is the defendant makes an apology, it won’s constitute an express or implied admission of liability and isn’t relevant to the determination of liability in the case. The defendant must notify the plaintiff in writing of his intention to apologise when he files his defence.7. Section 25 – Consent to PublishIt is a defence for a defendant to prove that the plaintiff consented to the publication of the statement.8. Section 26 – Fair and Reasonable PublicationA defendant can rely on this defence if he/she can show (i) the statement was published in good faith (ii) in the course of or for the purpose of the discussion of a subject of public interest, the discussion of which was for the public benefit (iii) the manner and extent of publication of the statement did not exceed what was reasonably sufficient (iv) it wad fair and reasonable to publish the statement.Section 26(2) sets out the factors the court will take into account in determining whether it was fair and reasonable to publish the statement including (i) the extent to which the statement concerned refers to the performance by the person of his or her public functions (ii) the seriousness of the allegations made in the statement (iii) the context and content (including the language used) of the statement (iv) the extent to which the statement drew a distinction between suspicions, allegations and facts (v) the extent to which there were exceptional circumstances that necessitated the publication of the statement on the date of publication (vi) the extent to which the plaintiffs version of events was represented in the publication concerned and given the same or similar prominence as was given to the statement concerned (viii) if the plaintiff’s version was not so represented, the extent to which a reasonable attempt was made by the publisher to obtain and publish a response from the person and (ix) the attempts made and the means used by the defendant to verify the assertions and allegations concerning the plaintiff in the statement.Section 26(3) provides that the failure or refusal of a plaintiff to respond to attempts by the defendant to obtain the plaintiff’s version of events shall not (a) constitute or imply consent to the publication of the statement or (b) entitle the court to draw any inferences therefrom.9. Section 27 – Innocent PublicationIn order to prove innocent publication a defendant must show that (i) he or she was not the author, editor or publisher of the statement to which the action relates (ii) he or she took reasonable care in relation to its publication and (iii) he or she did not know and had no reason to believe that what he or she did caused or contributed to the publication of a statement which would give rise to a cause of action in defamation.In our second blog posting we will look at the remedies available under the Act.