Taylor Hampton explains the ‘Defence of Truth’
This article discusses Defence of Truth in libel and slander matters. In actions for defamation (libel and slander) in England and Wales, it is a defence for a Defendant to show that the defamatory imputation conveyed by the publication sued upon by the Claimant is true (or substantially so). Previously known as the defence of “justification” under the pre-existing common law, section 2 of the Defamation Act 2013 codified the position and now provides as follows:
2 Truth
(1)It is a defence to an action for defamation for the defendant to show that the imputation conveyed by the statement complained of is substantially true.
(2)Subsection (3) applies in an action for defamation if the statement complained of conveys two or more distinct imputations.
(3)If one or more of the imputations is not shown to be substantially true, the defence under this section does not fail if, having regard to the imputations which are shown to be substantially true, the imputations which are not shown to be substantially true do not seriously harm the claimant’s reputation.
The Defence under s.2 is a complete Defence, such that if successfully invoked by a Defendant, the claim advanced by the Claimant will fail entirely. This reflects a public policy decision to not allow a Claimant to obtain compensation for damage done to a reputation which it might be thought they ought not to possess, although some commentators have suggested that a remedy should be available when a publisher maliciously makes public a previous matter which has long since been atoned for.
Burden of Proof in Establishing Defence
In establishing the Defence, the burden of proof theoretically lies on the Defendant as a defamatory imputation is presumed to be false unless proven otherwise, albeit in practice the Claimant is required to provide a sufficient explanation to the Defendant at the outset of their complaint as to why the publication complained of is inaccurate and, should their claim proceed, serve the evidence of any witnesses on whose evidence they intend to rely in advance of any trial. Accordingly, and whilst this apparent presumption has often been criticised by those in the media, or campaigners supportive of greater protections for freedom of speech, its true significance is perhaps overstated.
As reflected by s.2(1) of the Defamation Act 2013, it is the essence or substance of the defamatory statement which must be proven true, rather than every detail. It is not however open to the Defendant to seek to instead prove the truth of other imputations which may be damaging to the Claimant’s reputation but which were not referenced or implied in the publication complained of, even where such imputations might equally detrimentally impact upon the Claimant’s reputation or relate to the same aspect of their life.
Defence of Truth and Publication of Multiple Allegations
Equally, if a publication contains multiple allegations, s.2(3) continues to reflect the position under the pre-existing common law that a defence of truth will not fail if some imputations are not proven true, but only provided the unproven imputations do not seriously harm the claimant’s reputation.
In summary, the applicability of a defence of Truth is invariably a matter of critical importance in any defamation claim and is a complex area requiring specialist advice for both Claimants faced with overcoming such a defence and Defendant’s seeking to mount one in the face of threatened proceedings.
For More information on Defamation Law
If you are in need of legal advice, or would like to understand more about defamation defences the defence of Truth, please contact our expert legal team on 0207 427 5970 or at [email protected].
This publication is a general summary of the law. It is not intended to constitute legal advice and should not be relied upon as such.