Page 56 - Law and the Media

Defamation
entitled to the protection of his defence ‘unless some other dominant and improper
motive on his part is proved’.
2. ‘If it is proved that he did not believe that what he published was true this is generally
conclusive evidence of express malice’. The same applies if the defendant published
the statement recklessly, in other words ‘without considering or caring whether it be
true or not’.
3. Even where there is honest belief in the truth of what was published (or, in respect of fair
comment, an honest expression of opinion) the defendant will still lose the protection of
the defence if it is proved that he misused the situation for some improper purpose, for
example to give vent to personal spite or for the attainment of some personal advantage.
The improper motive must be the dominant reason for the publication. Where the
defendant believed in what he was saying or writing judges and juries should be slow to
deprive him of the protection to which he would normally be entitled. Thus, although the
Labour councillor was clearly prejudiced and antagonistic towards his Tory rival, his
honest belief in what he was saying sustained the defence.

The court held in Horrocks v Lowe that ‘the motive with which a person published
defamatory matter can only be inferred from what he did, or said, or knew’. In order to prove
malice, claimants usually rely on the following to substantiate their allegation:

Style, manner and prominence of publication: with media publications the
prominence and choice of headline can be taken as an indication of malice. A
comparatively trivial matter blown up into a front page or top story or set under
screaming banner headlines could suggest an improper motive. The strength of
language used might also, in extreme cases, be evidence that the defendant was
malicious.
Personal grudges or ill will between the parties: claimants who allege malice can,
in support of their plea, adduce as evidence any history of ill feeling between the
parties. Anything that might indicate that the defamatory publication was an act of
revenge or part of a vindictive campaign is strong evidence of malice. In Horrocks
v Lowe, the claimant predictably made much of the defendant’s political
antagonism.
Refusal to retract or apologize: the refusal by the defendant to correct and
apologize for the offending publication can be used against him as evidence of
malice. Logically, this should only apply in cases where the defendant persisted in
his refusal to retract after he was clearly shown to be in the wrong. After all,
refusing to apologize can just as properly be interpreted as a continuing honest
belief in what was originally published.

Liability for the malice of others
Although the law makes an employer liable for the malice of his employees, fortunately for the
media it does not generally make the publisher responsible for the malice of independent third
parties. Thus, newspapers and television broadcasters may be answerable for the malicious
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