Page 48 - Law and the Media

Defamation
Accordingly, a person may safely write a letter containing any amount of defamatory material
about the addressee as long as it remains in an envelope while in transit and is only read by the
addressee. The position is different if such a statement is made on a postcard or in an email sent
in unencrypted form or in an insecure environment. In such cases the contents are presumed to
be transmitted to others between dispatch and arrival. It is irrelevant that the defendant did not
intend the defamatory statement to be communicated to any other person.

At the trial of a libel action the claimant must normally call evidence to show that publication
of the statement has actually taken place. This is usually unnecessary in cases involving
media defendants such as newspapers or television and radio programmes because the law
presumes that the material has been published to other persons.

1.3 Defences

The law does not recognize the right to publicize falsehoods. Only the expression of truth is
protected. However, freedom to voice an honest opinion is recognized by the court as being
in the public interest. The court also recognizes that the free and proper administration of
justice in the courtroom and in parliament is in the public interest.

There are seven main defences to libel, of which the first four are most commonly raised by
the defendant:

1. Justification
2. Fair comment
3. Absolute privilege
4. Qualified privilege
5. Offer of amends under Section 2 of the Defamation Act 1996
6. Leave and licence
7. Innocent defamation under Section 1 of the Defamation Act 1996.

The burden of proof is on the defendant. It is important to realize that the filing of a defence
to a defamation action is a step governed by the formal rules of legal pleading. Under those
rules, a defendant is not permitted to plead any point unless there already exists evidence to
support that point. Those who publish in the belief that the story is true without any
supporting evidence are in danger of being left with no defence at all.

1.3.1 Justification

Justification protects the freedom to tell the truth. In order to raise the defence of justification
successfully, the defendant must prove that the defamatory statement is true in both
substance and fact, or is substantially true.
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