Key Concepts of Defamation

Defences of Defamation

Under the common law, there are four main defences to defamation. These are: (1) justification; (2) consent to the publication; (3) fair comment; (4) absolute and qualified privilege; and (5) innocent dissemination.

Truth is recognized as an absolute defence to defamation. If what is written or spoken about the plaintiff is true, or in cases where the statement is published with the plaintiff's consent, the defense is recognized.

For the defence of fair comment to succeed, the comment, i.e. an expression of opinion, must be on a matter of pubic interest that is based on true facts, and is fair in the sense that the comment can honestly be held by a fair-minded person.

In certain situations, one is allowed by law, to speak freely about another without regard to liability for defamation. This defense usually relates to statements associated with the effective furtherance of the operations of the government. Thus, members of the judicial, legislative and executive branches of the government are protected from liability for the publication of false statements as long as these relate to their particular functions. The law is made to recognize the need for these individuals to speak or express freely without the fear of a lawsuit.

Qualified privilege can be raised in respect of reports of the legislative or judicial proceedings or other publications made under a legal, social or moral duty. The defence of qualified privilege will only succeed if there is an absence of malice. In addition, press or the media may have a qualified privilege to inform the public about the activities of the famous which is of public interest.

In some contexts, one who has no knowledge of the defamatory material may employ the defense of "innocent dissemination". In this connection, one will generally be considered as to whether one has exercised all reasonable care in the publication of the offending material.

In the case of Internet publications, difficulties may arise to the operation of some requirements of the defences to defamation because of the unique capability of instantaneously communications across the globe via the Internet. What is considered of public interest or concern in one location may not be of the same interest or concern in other locations. In light of this, a fair of comment may fail where a comment published via the Internet if of only local concern but is published to persons outside the area of local concern.