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. 1 (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). 2 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. 3 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. 4 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. 5 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. 6 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). 7 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. 8 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 9