Page 50 - Law and the Media

Defamation
defendant’s justification plea will not fail if it is established that the claimant did rob the bank
but in fact did so at 3.30 pm last Monday. The ‘sting’ of the libel is the suggestion that the
claimant committed the robbery of the bank. The date and time add nothing to the
defamatory content of the published statement.

Partial justification
Where a publication alleges a whole series of allegations against a person, the defendant may
have a complete defence under Section 5 of the Defamation Act 1952 even if the defendant
cannot prove the truth of all the allegations. In such cases the defendant is entitled to plead
partial justification. Under Section 5, the defence will succeed if the unjustifiable matters ‘do
not materially injure the claimant’s reputation having regard to the truth of the remaining
matters’. For example, if a television documentary on the music industry portrays a particular
disc jockey as being a regular user of narcotic drugs and a heavy drinker and the defendant
is able to prove the first allegation but not the second, Section 5 of the Defamation Act 1952
is likely to apply since the taking of narcotics is illegal and considered to be a greater vice
than the consumption of alcohol. However, if the unjustifiable allegations have libellous
meanings of their own the defendant is likely to have to pay damages to the claimant in
respect of those allegations.

A claimant can decide to sue in respect of only some of the allegations made against him in
a series of allegations. If the claimant does so, the defendant is unable to justify the other
defamatory statements that are not the subject of proceedings in order to mitigate damages
or to prejudice the jury against the claimant. However, the defendant is entitled to rely on the
statement that is the subject of the proceedings in the context of the publication as a whole
as the basis of the plea of justification (Polly Peck v Trelford (1986)).

If the defendant wishes to plead that the published statement bears a lesser defamatory
meaning than that pleaded by the claimant, the defendant must set out clearly in the defence
the defamatory meaning he seeks to justify (Prager v Times Newspapers (1988); Lucas-Box
v News Group Ltd (1986)).

Aggravation
One of the major concerns a defendant frequently has to face when pleading justification is
that the plea itself exacerbates the damages. A claimant is perfectly entitled to argue that the
defendant not only published defamatory material and refused to apologize, but also
persisted in the damaging and libellous allegations right up to the moment the jury delivered
its verdict. In the event that the jury does not accept the plea of justification, the very fact
that the defendant chose to enter such a defence can operate as an aggravation of the original
libel and become a reason to award a greater amount in damages than would otherwise be
called for.

Apart from the limited protection afforded by the Rehabilitation of Offenders Act 1974, there
is nothing to stop a defendant relying on previous incidents from someone’s past, so long as
they are true, to support the defence. In general, the media are free to drag up and publicize
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