Mapping Defamation Defences

Publication Date01 Jul 2015
AuthorEric Descheemaeker
Mapping Defamation Defences
Eric Descheemaeker*
The general neglect of tort defences is most significant in defamation actions. This paper attempts
to reduce to a few guiding principles the numerous, and apparently unrelated, doctrines recog-
nised as defences by the law of defamation. Defining the cause of action as an injury to the
claimant’s reputation, it argues that they fall into three classes: (i) defences which exclude
unlawfulness because the injury was inflicted in pursuance of a right or liberty of the defendant;
(ii) defences which exclude blameworthiness because the defendant was not at fault for causing the
injury; (iii) defences which relieve the defendant of liability despite the injury being both non iure
and negligent: this group, not being underpinned by recognised principles, deserves particular
scrutiny. The rule of repetition should be qualified by recognition of a defence of ‘warranted
republication’; the remainder should be abolished, being an anachronistic hangover from the old
requirement of malice.
There is probably no tort where defences play a greater role than defamation.
Like its Roman forebear, the delict of iniuria (ie insult, contempt), the English
wrong is defined in an extremely broad and open-ended way, being concerned
with the publication of any statement liable to cause ‘right-thinking members of
society’ to think less well of the plaintiff. This is the first stage, the elements of
liability which the claimant must establish, and the prima facie cause of action. In
tort textbooks these typically make up one chapter. This chapter will usually be
followed by another setting out defences which allow the defendant to reverse
the provisional finding of liability by establishing the existence of further sets of
facts, such as truth, fair comment (honest opinion) or various forms of privileges.
Only if no such defence succeeds will the claimant win.1While this is in a sense
true of all causes of action, the striking feature of defamation is how far the
second stage goes towards undoing the first. Where defences would normally
have the effect of fine-tuning the boundaries of liability established by the prima
facie cause of action, defamation defences are in the altogether different business
of reclaiming much – if not most – of the ‘territory’ that the first part of the
enquiry had handed to the pursuing party. At the end of the day, the situations
in which the claimant will in fact obtain a remedy bear little resemblance to the
impression the reader had been left with at the end of the previous chapter. The
*University of Edinburgh. I am particularly indebted to Andrew Kenyon for his invitation to present
a preliminary version of this paper at a conference in Melbourne on 23–24 April 2014, and also to James
Goudkamp, Paul Mitchell, Andrew Scott and an anonymous reviewer for their perceptive comments
on an earlier draft.
1 I ignore throughout this paper liability-defeating factors that are external to the cause of action (ie
the claimant-defendant relationship), such as immunities or limitation bars. These may or may not
be regarded as defences properly so called; at any rate they are not defamation defences in any
specific sense of the term.
© 2015 The Author. The Modern Law Review © 2015 The Modern Law Review Limited. (2015) 78(4) MLR 641–671
Published by John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
boundaries of liability have shifted radically. The distance might be impossible to
measure but neither is it possible to deny; one objective indicator is the sheer size
of those sections that pertain to defences in academic treatments of the field.
This calls for attention. It is at least possible that we might find it to be wrong,
as a matter of principle, for the law to allocate so much of the work of
determining actionability to the second stage of the enquiry, with its corollary,
the fact that the task of establishing the relevant facts is placed on the defendant.
At the very least, even if we do not challenge the principle, we ought to examine
very closely what is actually going on at this crucial second stage. Yet, by their
nature, defences in the law of defamation have shared in the general disinterest
that has plagued defences.2This is true of individual defences – though not all to
the same extent – and even more so of defences taken as a whole. This paper is
an attempt to begin the remediation, looking at defamation defences in their
generality. This will be done in the context of English law, which in turn
necessarily imports at least some consideration of the European Convention on
Human Rights and the related case-law, both from the Strasbourg court and, in
the post-Human Rights Act 1998 era, from domestic courts.3However, many
of the arguments and conclusions should be, if not immediately transposable, at
least directly relevant to other jurisdictions whose law has historically stemmed
from English law. The main ambition is to understand better how defamation
defences operate. Faced with such a long, and seemingly haphazard, list of
doctrines described in the literature as ‘defences’, with little or no apparent unity
(in contrast with the strikingly simple prima facie cause of action), can we step
back and identify a few guiding principles which underpin their operation? In
other words, can we discern underlying rationality beneath the apparent disorder
when we approach the second stage of the action in defamation? The alternatives
would seem to be simple: either we can, and we will have achieved something
valuable in simplifying and rationalising this area of the law; or we cannot, and
severe doubt will be cast on whether the current system – inherited from
hundreds of years of slow and gradual development, and the basic structure of
which has been left virtually untouched by judicial or even legislative reforms –
is at all sustainable.
The conclusion, at the end of the exploration, will be that indeed we can. The
gist of this paper is that when we examine this area of the law and try to fit the
pieces of the jigsaw together, we can bring to the fore some ideas – rather simple
ones – which have provided the implicit structure on which the law has relied
all along, if with a dim consciousness (it being in the nature of the common law
that arguments about the interpretation of earlier authority will soon take
precedence over the examination of first principles). In turn, provided they are
not entirely corrupt, these guiding principles will provide the basis from which
we can examine and reform the rest of the law, trying to work them out in a
systematic way so as to achieve that third requirement of justice, consistency.
Some of the defences explored deny that the injury caused to the claimant was
unlawful, because the law grants permission to the defendant to inflict it in the
2 J. Goudkamp, Tort Law Defences (Oxford: Hart, 2013) 7–11.
3 See the section below headed ‘The English law of defamation and the Human Rights Act 1998’.
Mapping Defamation Defences
© 2015 The Author. The Modern Law Review © 2015 The Modern Law Review Limited.
642 (2015) 78(4) MLR 641–671

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