Defamation and its defences

In my previous post, we looked at a brief introduction to defamation and the elements required for such a claim to succeed. In this post we will look at the defences that can be raised against such claims. There are several defences against an action for defamation, usually rebutting the element of wrongfulness.

Truth and public interest

The first defence is that of truth and public interest. This defence, from its name, has two requirements that must be proved in order for it to succeed – the published content must not only be true, but in the public interest. In terms of “truth”, all that must be proved is that the gist of the defamatory charge is true, rather than literal truth (as such exaggerations may still be regarded as true). Public interest however will depend on the circumstances of each case and the views and morals of society at the time. The focus however is on interest in the legal sense, rather than the public merely being curious about the matter. It is for this reason that “in the public interest” is often used interchangeably with “for public benefit”. There are some clear examples however where public interest has been established to exist, such as where the defamatory remarks concern the integrity or competence of public officials or figures. An example of this would be if the President were drunk in Parliament as the public would have a clear interest in this.

Fair comment

The second defence that can be raised is if the statement was a fair comment. A fair comment is when the person publicising the information is expressing an opinion or comment that is based upon facts that are substantially true, widely known, and pertaining to a matter of public interest. To note a well-known case, this was the defence used by the media in The Citizen v McBride where The Citizen newspaper labelled police commissioner nominee Robert McBride a murderer due to a bombing that occurred during apartheid, despite the fact that McBride was granted amnesty for this act and therefore not legally classified as a “murderer”.

Privileged occasion

The third defence is that of privileged occasion. This in a nutshell refers to content that was an accurate report on the events of a court, Parliament, or  public statutory body. This defence has two separate parts to it, and is covered in a more in-depth look at privilege.

Reasonableness

The final defence is that of reasonableness as established in National Media Ltd. v Bogoshi which is when considering various factors (including the nature of the allegation, public interest, tone of the article, reliability of the sources, right of reply, etc.), whether it was reasonable to publish the material (even if it was defamatory and contained falsehoods). For this defence to succeed there cannot have been negligence on the side of the publisher (e.g. if the media did not attempt to contact the plaintiff for a response to the claims or double check their sources prior to publication it will be negligent and therefore unreasonable publication).

These are the four fundamental defences against the element of wrongfulness, however it is also important to note that a claim for defamation will not succeed if any of the other elements are disproved.

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