Defences (Defamation) Notes

Defences

Defamation Bill 2006

s. 14 (1) It shall be a defence (to be known and in this Act referred to as the defence of 'Truth') to a defamation action for the defendant to show that the statement in respect of which which the claim is brought is true in all material respects.

(2) In a defamation action in respect of a statement containing 2 or more distinct allegations against the plaintiff, the defence of truth shall not fail by reason only of the defence of every allegation not being proved, if the words not proved to be true do not materially injure the plaintiff's reputation having regard to the truth of the remaining allegations.

s.18 (1) It shall be a defence (to be known and in this section referred to as the “defence of honest opinion”) to a defamation action for the defendant to prove that, in the case of a statement consisting of an opinion, the opinion was honestly held.

(2) Subject to sub-section 3 an opinion is honestly held, for the purposes of this section, if a) at the time of the publication of the statement, the defendant believed in the truth of the opinion or, the defendant was not the author of the opinion, believed that the author believed it to be true, b) the opinion was based on allegations of fact specified in the statement containing the opinion or referred to in the statement, that were known, or might reasonably have been known, by the persons to whom the statement was published or the opinion was based on allegations of fact to which the defence of absolute privilege or the defence of qualified privilege would apply if a defamation action were brought in respect of such allegations and c) the opinion related to a matter of public interest.

(3) a) The defence of honest opinion shall fail if the opinion concerned is based on allegations of fact to which sub-section 2 (b) (i) applies, unless i) the defendant proves the truth of those allegations or ii) where the defendant does not prove the truth of all of those allegations, the opinion is honestly held having regard to the allegations of fact, the truth of which the defendant did prove. b) The defence of honest opinion will fail if the opinion concerned is based on allegations of fact to which 2 (b) (ii) applies unless (i) the defendant proves the truth of those allegations or (ii) where the defendant does not prove the truth of those allegations (I) the opinion could not reasonably be understood as implying that those allegations were true and (II) at the time of the publication of the opinion, the defendant did not know or could not reasonably have been expected to know that those allegations were untrue

s.19 The matters to which a court in a defamation action shall have regard, for the purposes of distinguishing between a statement consisting of allegations of fact and a statement consisting of opinion, shall include the following:- A) the extent to which the opinion is capable of being proved, B) the extent to which the opinion was made in circumstances in which it was likely to have been reasonably understood as a statement of opinion rather than a statement consisting of fact and C) the words used in the statement and the extent to which the statement was subject to a qualification or disclaimer or was accompanied by cautionary words.

s.20 (1) A person who makes a statement which is alleged to be defamatory of someone may make an offer of amends. (5) In this section an offer of amends means an offer A) to make a suitable correction of the statement concerned and a sufficient apology to the person to whom the statement refers or is alleged to refer, B) to publish that correction and apology in a manner that is reasonable and practicable in all the circumstances and C) to pay that person such a sum in compensation or damages (if any) or such costs as may be agreed by them or determined to be payable.

s.21 (1) If an offer to make amends under section 20 is accepted, the following provisions shall apply:- D) no defamation action shall be brought, or if already brought, proceeded with against another person in respect of a statement to which the offer of amends applies unless the court decides that in all the circumstances of the case it is just and proper to do so. (2) Subject to sub-section 3 it shall be a defence to a defamation action for a person to prove that he or she made an offer to make amends under section 20 and it was not accepted, unless the plaintiff proves that the defendant knew or ought reasonably to have known at the time of publication that A) it referred to the plaintiff or was likely to be understood as referring to the plaintiff and B) it was false and defamatory of the plaintiff. (4) A person who makes an offer to make amends is not required to plead it as a defence in a defamation action (5) If a defendant in a defamation action pleads the defence under this section, he or she shall not be able to plead any other defence in the action.

s.22 (1) In a defamation action the defendant may give evidence, in mitigation of damage, that he or she made or offered an apology to the plaintiff in respect of a statement to which the action relates either A) before the bringing of the action or B) as soon as practical thereafter, in circumstances where the action was commenced before there was an opportunity to make an apology. (3) In a defamation action, an apology made by or on behalf of a defendant in respect of a statement to which the action relates A) does not constitute an express or implied admission of liability by the defendant and B) is not relevant to the determination of liability in that action. (4) Evidence of an apology made by or on behalf of a person in respect of a statement to which the action relates is not admissible in any civil proceedings as evidence of liability of the defendant.

s.23 In a defamation action it shall be a defence, to be known as the “defence of consent”, for the defendant to prove that the plaintiff consented to the publication in respect of which...

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