Defences & remedies
A strong system of legal defences which can be used against a defamation claim is essential if defamation laws are not to unreasonably restrict the free flow of information and ideas. There are five particularly important defences against claims of defamation which are drawn from international and comparative law.
Defence of the truth - burden of proof
Proof of truth should be a complete defence to an allegation of defamation. The law of defamation should serve to protect individuals against unwarranted attacks on their reputation, rather than to protect their honour regardless of whether their good reputation is deserved. At the same time, an individual confronted with truthful revelations about his or her private life may have a separate claim for invasion of privacy.
In ordinary cases, it is reasonable to expect the defendant to demonstrate the truthfulness of the statement. However, in cases involving matters of public interest, such as a claim by a public official, the burden of proof should be reversed and the plaintiff required to demonstrate the falsehood of the statement. The importance of enabling debate on matters of public interest justifies placing a heavier burden on the plaintiff. As the US Supreme Court stated: “Under such a rule, would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is in fact true, because of doubt whether it can be proved in court or fear of the expense of having to do so.” Instead, it should be sufficient to show that the statement was correct in its essential elements.
Statements of opinion vs. statements of fact
No one should be found liable for a statement of opinion, that is, a statement which cannot be shown to be true or false or which is clearly not intended as a statement of fact (for example because it is rhetoric, satire or simply a joke). An opinion cannot be considered an unwarranted attack on someone’s reputation, since it can by definition not be proven true or false. Furthermore, it may be noted that international law provides absolute protection to the holding of opinions. It is not for the authorities to determine whether or not a subjective viewpoint should be deemed appropriate.
Defence of ‘reasonable publication’
Even where a statement of fact on a matter of public concern has been shown to be false, defamation defendants should benefit from a defence of ‘reasonable publication’. This defence applies, as its name suggests, if it was reasonable for a person in the position of the defendant to have disseminated the material in the manner and form he or she did.
A rule of this type is necessary to protect the ability of the media to carry out their task of informing the public effectively. When an important news story is developing, journalists cannot always wait until they are completely sure that every fact made available to them is correct before publishing or broadcasting the story. Even the best journalists make honest mistakes; to leave them open to punishment for every false allegation would make their work very risky and so discourage them from providing the public with timely information.
A more appropriate balance between the right to freedom of expression and reputations is to protect those who have acted reasonably and taken whatever steps were reasonably possible to check their facts, while allowing plaintiffs to sue those who have not. For the media, acting in accordance with accepted professional standards (for example, those defined in a code of conduct) should normally satisfy the reasonableness test.
Absolute and qualified privileges
There are certain forums in which the ability to speak freely is so vital that statements made there should never lead to liability for defamation. Such an absolute privilege should apply, for example, to statements made during judicial proceedings, statements before elected bodies and fair and accurate reports on such statements. Certain other types of statements should enjoy a qualified privilege; that is, they should be exempt from liability unless they can be shown to have been made with malice. This latter category should include statements which the speaker is under a legal, moral or social duty to make, such as reporting a suspected crime to the police. In such cases, the public interest in the statements being made is deemed to outweigh any private reputation interest in suppressing the statements.
Words of others
Finally, journalists should not be held liable for reporting or reproducing the statements of others, so long as these statements have news value and the journalist refrains from endorsing them. The ECtHR has underlined the need for such an exemption:
Punishment of a journalist for assisting in the dissemination of statements made by another person ... would seriously hamper the contribution of the press to discussion of matters of public interest and should not be envisaged unless there are particularly strong reasons for doing so … A general requirement for journalists systematically and formally to distance themselves from the content of a quotation that might insult or provoke others or damage their reputation is not reconcilable with the press’ role of providing information on current events, opinions and ideas.
The applicant in this case was a radio journalist who had been found liable after quoting from a newspaper article which alleged that of all the forestry officials in Luxembourg only one was not corrupt. The ECtHR, in finding that the applicant’s right to free expression had been unjustly infringed, also took into account that the applicant had consistently taken the precaution of mentioning that he was beginning a quotation and of citing the author, and that in addition he had described the entire article as “strongly worded”. He had also asked a third party, a woodlands owner, whether he thought that the allegations were true.
Like any restriction on freedom of expression, sanctions for defamatory statements must be ‘necessary’, that is, they should be proportionate so that their footprint on the right does not go beyond what is needed.
It is the responsibility of the authorities to establish a regime of remedies for defamatory statements which, while redressing the harm to reputation, does not exert a chilling effect on legitimate statements.
Traditionally, the ordinary remedy for defamation has been financial compensation, but in several countries a culture of excessive awards has had a negative effect on the free flow of information. A variety of less intrusive but still effective alternative remedies exist, such as a court order to issue an apology or correction, or to publish the judgment finding the statements to be defamatory. Such alternative remedies are more speech-friendly and should be prioritised. Where monetary awards are necessary to redress financial harm, the law should specify clear criteria for determining the size of awards.
As noted above, international bodies have taken a very dim view of imprisonment as a sanction for defamation. The ECtHR has never upheld a sentence of imprisonment, while in its 1994 annual report the UNHRCm criticised Iceland for maintaining the possibility of custodial sanctions for defamation, even though this had apparently not been applied in practice. The UNHRCm similarly noted its concerns in this regard in relation to Norway and Jordan.
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