2.3.1.2 Common Defences1
1.
Members of the jury, in this case, in addition to denying [insert the element(s) of the
plaintiff’s cause of action the defendant has denied], the defendant relies upon the defences
of [insert defences relied on – truth, fair comment et cetera].2 Because the defendant alleges
the relevant defence, it is for the defendant to prove the defence. Again, the standard of
proof is the balance of probabilities – which I have already explained.
2.
You will only come to consider the various defences relied upon by the defendant if you have
found that the matter complained of was published by the defendant and was defamatory of
the plaintiff. If you have come to these conclusions, then, again, it is for the defendant to
prove a defence on the balance of probabilities.
Defence of common law justification
3.
I turn to the defence of truth. You will see the question you have to answer is framed as
follows:
'Has the defendant established that any or all (stating which) of the imputations
you have found were conveyed by the matter complained of were true in
substance and in fact?'
4.
While the defence of truth does not require the defendant to prove the truth of every detail
of the matter published, it needs to prove the truth of the sting of the meaning conveyed. It
cannot just prove part of the meaning conveyed is true. It must prove that the whole is
substantially true.
5.
Trivial matters can be ignored: it is the sting of the matter published that you are concerned
with.
6.
You will need to consider each defamatory imputation or meaning that you have found was
conveyed by the publication. In respect of each such meaning, you need to determine
whether or not the defendant has proved the truth of its sting – that is, that the whole of it
1
Note: This charge is a guide only, and may require modification to fit the facts of an
individual case
2
Defences include common law truth, Polly Peck truth, statutory truth (s 25), statutory Polly Peck truth,
contextual truth (s 26), the various common law absolute privilege defences, the statutory absolute
privilege defences (s 27), the common law qualified privilege defences (reciprocity of duty and
interest; Lange; reply to attack; defence of others; complaints and redress etc), publication of public
documents (s 28), fair report of proceedings of public concern (s 29), statutory qualified privilege
(s 30), the three statutory honest opinion defences (s 31), common law innocent dissemination,
statutory innocent dissemination (s 32), triviality (s 33), jest, consent, vulgar abuse and offer to make
amends (s 18). It is beyond the scope of this document to deal with all of the defences and all of the
various permutations and combinations, including ancillary and derivative privileges. Instead, this
document is limited to the defences that most frequently arise in a jury context.
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(the defamatory meaning) is substantially true. I say again that trivial matters can be
ignored – it is whether or not the sting is substantially true.
7.
[Insert relevant evidence]
8.
[Insert the parties' arguments]
Defence of statutory justification (s 25)
9.
The directions I have just given you relate to the common law defence of truth. There is an
equivalent statutory defence of truth. You will see the question that you are asked in relation
to the statutory defence is in slightly different terms from the question concerning the
common law defence. In terms you are asked:
'Has the defendant established that any or all (stating which) of the imputations
you have found were conveyed by the matter complained of were substantially
true?'
10.
While the question is in slightly different terms reflecting the language used by Parliament
when it enacted this defence, the law is the same as for the common law defence. Each
imputation must be looked at. In order for the defence to be made out in respect of an
imputation, the defendant must satisfy you that the imputation or meaning you have found
is substantially true. Again, it must prove that the whole of the imputation is substantially
true. Again, trivial matters can be ignored. Again, it is the sting of the imputation you are
concerned with.
11.
It follows that your answer to this question will almost certainly be the same as your answer
to the common law truth question.
12.
If you find that each of the imputations you have found were conveyed by the matter
complained of are substantially true, then that is the end of the case, you will not need to
consider any further defences raised by the defendant. However, if you are not satisfied as
to the substantial truth of one or more of the imputations you have found were conveyed,
then it will be necessary to consider the defendant’s additional defences in respect of that
(or those) imputation(s).
Defence of fair comment
13.
I turn now to the defendant’s defence of fair comment. Again, you only get to this defence if
the plaintiff establishes that the defendant published the matter complained of and that it
bore one or more imputations defamatory of [him/her]. Additionally, you only consider this
defence in respect of those imputations in respect of which the defendant has not
established truth (common law or statutory).
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14.
Again, it is for the defendant to prove this defence (like the other defences it has raised) on
the balance of probabilities.
15.
What underpins the defence of fair comment is the notion of freedom of expression.
Provided a defendant makes it clear that what [he/she] is saying is a comment and the
person, to whom the matter complained of is published, knows in general terms what the
factual basis for that comment is, then that person can determine for himself or herself the
validity of the opinion or comment made. That is, the [reader/listener/viewer] can say, 'That
sounds fair enough', or, alternatively, 'What a load of rubbish'.
16.
There are three elements to the defence of fair comment which must be established by the
defendant:
(a)
first, the imputation/matter in question must be a comment;
(b)
secondly, the comment must be on a matter of public interest; and
(c)
thirdly, the comment must be fair. Fair does not mean objectively fair or reasonable.
The question really is one of honesty. I will come back to this.
17.
In considering the fair comment defence, you will need to consider the following.
18.
First, in determining whether a particular statement is a comment, you would need to be
satisfied that it appeared to be an opinion or comment. It must appear to the reasonable
[reader/listener/viewer] to be an opinion or comment.
19.
Secondly, the comment or opinion must explicitly or implicitly indicate, at least in general
terms, the facts on which the comment is made. That is so the reasonable
[reader/listener/viewer] understands, with sufficient clarity, what the facts that underpin the
opinion or comment are. That is so the [reader/listener/viewer] can say, 'Well, I do/don’t
agree with that comment'.
20.
Thirdly, it must appear as a comment and not be so mixed up with the facts so that the
reasonable [reader/listener/viewer] could not distinguish between what is fact and what is
comment.
So
in
other
words,
you
must
be
satisfied
that
a
reasonable
[reader/listener/viewer] would recognise or identify the particular imputation as a comment,
and then you must be satisfied that it was sufficiently clear to the reasonable
[reader/listener/viewer] that it was a comment and not a statement of fact. So in this case,
the point is, could a reasonable [reader/listener/viewer] clearly discern that what was
[broadcast/written] was comment and not statements of fact.
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21.
Fourthly, the comment that you have identified must be based on facts which have been
proven to be true [in a different case and/or published on an occasion of qualified privilege
].3
22.
If the facts on which the comment purports to be made are not established, then the
defence fails.
As appropriate, for further elaboration, insert the following shaded section:
23.
Now, the law says that where a publication involves a discussion about a program, play or a
broadcast, or a television program, and you conclude that the publication was a discussion of
that program and therefore comment upon it, then the defendant does not need to prove
the truth of the facts upon which the publication is based. The best example of this is a
review of a book or a play. Probably, the reader or viewer will not have read the book or
seen the play. Provided the book or play is identified correctly, then, subject to the comment
being fair, the reviewer can say what he or she likes about it. The facts do not need to be
proved. The defendant, however, needs to prove that it was clear to the reader or viewer
that the publication discussing this topic was truly a discussion about the particular subject –
and not just a venting of spleen.
24.
You need to take into account the actually language used and the context in which the
matter complained of appears. So it is not just the words themselves, but the whole of the
publication that you need to consider and analyse.
25.
Fifthly, you will need to be satisfied about whether the comment is fair. Now, the word 'fair'
is misleading. The question is really one of honesty. The question is not whether the
comment is justified, using that word in its ordinary meaning, but whether it expresses an
opinion which any fair-minded person could honestly hold on the basis of the proven facts.
26.
Do not confuse the expression 'fair' with 'reasonable'. The defence of fair comment is not
determined by whether you think the opinion or the comment is reasonable, but only
whether you think a fair-minded person could honestly express the opinion. You may well
take the view that others could express different opinions, violently opposed to those
expressed by the person making the comment. That does not determine the issue, nor does
whether you agree with it determine the issue. The question is whether you think it is a
comment which any person, be he or she prejudiced or obstinate, could honestly hold. Or, to
put it another way, the question is, could a fair minded person holding strong views,
obstinate views, pig-headed, forceful views, have been capable of making this comment.
3
A matter which will have been ruled on by the trial judge before the charge is given, or a matter upon
which a disputed issue of fact may have to be resolved by the jury.
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27.
Further, it is not necessary for the person making the comment to prove that he or she
honestly believed the comment conveyed in the publication. The publication must be
objectively fair – that is, could any fair-minded person honestly express the opinion or
comment on the facts proved to your satisfaction? Put another way, would a fair-minded
[reader/listener/viewer] have that the opinion was held fairly (honestly) no matter how
belligerently expressed or how left-field the comment or opinion was. Again, in assessing this
issue, you have regard not only to the words used, but to the whole of the publication.
28.
The final requirement for this defence is that the comment must be on a matter of public
interest. The defence of fair comment is only available with respect to comments on matters
of public interest, the rationale being that free discussion of such matters promotes the
common good and well-being of society.
29.
Opinions on subjects of merely private concern are not protected. A person’s private life will
not normally be a matter of public interest unless the person makes it so, or it is relevant to
the performance of his or her public functions. However, what is a matter of public interest
should not be confined within narrow limits. 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 to others; then it is a matter of public interest on which
everyone is entitled to make fair comment.
30.
There is no exhaustive list of topics of what can be matters of public interest. However, the
following areas are normally regarded as being matters of public interest:
(a)
politics and government;
(b)
public institutions and officials;
(c)
expenditure of public moneys;
(d)
public health;
(e)
public entertainment; and
(f)
public sources of information.
31.
[Insert relevant evidence]
32.
[Insert the parties' arguments]
33.
If you find the defence of fair comment made out in respect of any of the imputations you
have found were conveyed, then one further issue needs to be considered – malice. In this
case, the plaintiff contends that if a defence of fair comment is made out, then there was
malice. Malice defeats the defence of fair comment. Further, because the plaintiff alleges
malice, then [he/she] must prove it – again on the balance of probabilities.
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34.
In order to defeat the defendant’s fair comment defence in respect of the imputations you
have found were fair comment on a matter of public interest, the plaintiff needs to satisfy
you that the particular imputation(s) was (or were) actuated by malice. For this to be
established, the plaintiff needs to prove that the publisher did not genuinely hold the view or
opinion [he/she] expressed. The test is subjective: what was the publisher’s motivation for
the comment. If [he/she] did not honestly believe what [he/she] was saying, then it was
said with malice
Judicial note: In an appropriate case it may be necessary to give a direction concerning
recklessness (that is, malice can be established by proving that what was published was published
with a reckless disregard as to its truth).
35.
Again, in determining whether the particular comment was published with malice, you will
have regard to the circumstances surrounding the publication and the publication itself. If
you are satisfied that the particular comment was published with malice, then the defence of
fair comment fails.
36.
[Insert relevant evidence]
37.
[Insert the parties' arguments]
Defence of honest opinion (s 31)
38.
The directions I have just given you relate to the common law defence of fair comment.
There is a related statutory defence of honest opinion.4
39.
It is a defence to the publication of defamatory matter if the defendant proves that:
(a)
the matter published was an expression of opinion of the defendant, rather than a
statement of fact; and
40.
(b)
the opinion related to a matter of public interest; and
(c)
the opinion is based on proper material.
Again, because the defendant alleges this defence, it is the defendant who must prove it.
[He/She] must prove each element of the defence on the balance of probabilities.
41.
What I have already told you about the issues of opinion and public interest applies equally
to this defence. So far as whether an opinion is based on proper material is concerned, in
4
This charge deals only with the defence of honest opinion relating to the expression of an opinion of
the defendant. There are 2 other similar defences relating to the expression of an opinion by an
employee or agent of the defendant, and relating to the expression of an opinion by a person other
than an employee or agent of the defendant.
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the context of this case, what that requires the defendant to prove is that the opinion (if you
find it to be opinion) was based on material that was substantially true.5
42.
Again, like the fair comment defence, the defence of honest opinion can be defeated by the
plaintiff proving that the opinion was not honestly held by the defendant at the time the
defamatory matter was published. Again, as with malice in the fair comment context, it is for
the plaintiff to prove that the opinion was not honestly held by the defendant on the balance
of probabilities.
43.
[Refer to relevant evidence (probably the same as the evidence referred to in respect of fair
comment and malice)]
44.
[Insert the arguments of the parties (probably an adaption of the arguments relied upon in
respect of fair comment and malice)].
Defence of qualified privilege
Judicial note: The question of whether a publication is made on an occasion of qualified privilege
at common law is a question for the trial judge. If there is an underlying factual question that
needs to be determined, insert the question here; explain the question; refer to relevant evidence
and competing submissions].
45.
Members of the jury, as I have said, the issue of qualified privilege is one for me to rule
upon [having regard to any answer given to any relevant question of fact]. However, the
defence of qualified privilege can be defeated by malice. In this case, the plaintiff asserts
that the qualified privilege defence contended for by the defendant is defeated by malice
because, as [he/she] alleges, the defendant was actuated by malice when [he/she]
published the matter complained of. Malice is a matter for you. Again, because the plaintiff
alleges malice, the plaintiff must prove it. Again, the standard of proof is on the balance of
probabilities.
46.
In this case, the issue of malice in relation to qualified privilege is different from the issue of
malice in relation to fair comment (about which I have already given you directions).
47.
The plaintiff will establish malice which defeats the qualified privilege defence alleged in this
case if the plaintiff establishes on the balance of probabilities that the defendant published
the material complained of with a foreign or ulterior motive to the privileged occasion. That
is, if the plaintiff establishes that the defendant published the material complained of, not
5
In other cases, it may be necessary to give a direction as to whether the opinion might have been
based on material that was published on an occasion of absolute or qualified privilege or an occasion
that attracted the protection of a defence under ss 28 or 29 of the Defamation Act (publication of
public documents and fair reporting of proceedings of public concern).
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pursuant to some common interest between the defendant and the persons to whom it was
published, but rather for the purpose of causing people not to deal with the plaintiff or
hurting the plaintiff in some other way, then the plaintiff will have established malice [explain
this by reference to the facts in the present case and the competing contentions].
48.
However, malice is not established merely by showing that the defendant did not like the
plaintiff. Malice requires subjective impropriety on the part of the defendant in the
publication of the matter complained of. It is not to be equated with carelessness,
impulsiveness, irrationality or prejudice. Additionally, malice in the mind of the defendant is
irrelevant unless it is proved to be either the sole or dominant motive for publishing the
defamatory matter.
49.
The defendant’s mental state (so far as malice is concerned) at the time of the publication of
the defamatory matter may be inferred from [his/her] words and actions before, after and at
the time of making the statement. While an inference of malice may be drawn from the
defamatory words themselves if you think them to be excessive, you should exercise
particular caution in doing so. It has been repeatedly said that courts and juries should not
be quick to find evidence of malice in the terms of the defamatory material published on a
privileged occasion because to do so would restrict considerably (if not defeat) the protection
which the law confers on privileged communications.
50.
[Insert evidence relevant to qualified privilege malice issues]
51.
[Insert parties’ competing arguments with respect to qualified privilege malice]
Defence of innocent dissemination (s 32)
52.
I turn now to the defendant’s defence of innocent dissemination. You will only come to this
question if you find that the defendant published material defamatory of the plaintiff.
53.
Because it is a defence, it is up to the defendant to prove the defence on the balance of
probabilities (just like the plaintiff is required to prove [his/her] case on the balance of
probabilities).
54.
It is a defence to the publication of defamatory material if a defendant proves that:
(a)
[It/he/she] published the matter complained of in the capacity of a subordinate
distributor (I will tell what a subordinate distributor is in a moment); and
(b)
the defendant did not know, nor ought reasonably to have known, that the matter
complained of was defamatory; and
(c)
the defendant's lack of knowledge was not due to any negligence on [its/his/her] part.
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55.
When you are looking at the defendant’s innocent dissemination defence, the defendant
must establish each of these three elements before there is a defence to the relevant
publication.
56.
As I have already told you, matter is published each time it is [downloaded and] read by a
person other than the plaintiff.
57.
To be a subordinate distributor (the first element of the defence), the defendant must show
that:
(a)
[It/he/she] was not the first or primary distributor of the matter; and
(b)
[It/he/she] was not the author or originator of the matter; and
(c)
[It/he/she] did not have any capacity to exercise editorial control over the content of
the matter, or over the publication of the matter, before it was first published.
As appropriate, for further elaboration, insert the following shaded section:
58.
Here, the defendant contends that it was a subordinate distributor because it was not the
first or primary distributor of the matter complained of; it was not the author or originator of
the relevant matter; and it did not have any capacity to exercise editorial control over the
content of the matter or over the publication of the matter before it was first published. I will
say more about this when I come to counsel’s addresses.
59.
[Insert relevant evidence]
60.
[Insert arguments of the parties]
Last updated: 14 April 2014
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