Page 62 - Law and the Media

Defamation
An offer to make amends must be made before a defence is served. It must be in writing. The
offer may be in relation to the statement generally, or in relation to a specific defamatory
meaning that the person making the offer accepts is conveyed by the statement, referred to
as a ‘qualified offer’. A qualified offer to make amends must set out the defamatory meaning
in respect of which it is made.

An offer under Section 2 is an offer to make and publish a suitable correction and apology,
and to pay any compensation and costs, the amount of which may be agreed between the
claimant and the defendant or, in default of agreement, determined by a judge.

If the claimant accepts the offer to make amends, his defamation action comes to an end.
However, he can enforce the terms of the offer against the defendant. If the claimant rejects
the offer the defendant can rely on the terms of the offer as a defence, but in such
circumstances he is precluded from relying on any other defence. The defendant can rely on
the offer in mitigation of damages whether or not it he relied on it as a defence.

1.3.5 Leave and licence

As one would logically expect, if a person consents to the publication of certain statements
he is not then entitled to sue for libel because of the publication.

The evidence of consent must be clear and unequivocal. Whatever authorization the claimant
is said to have given should be seen to refer to the publication of the defamatory matter. For
example, if someone is approached by a reporter and asked about a particular defamatory
statement concerning himself he will not, by indignantly denying it, be taken to have
authorized the publication of the slur in the form of the denial. Similarly, if during the course
of an acrimonious conversation one person challenges another to repeat what he has said in
front of witnesses, this will rarely amount to consent for the publication of the slander.

The situation where the defence is most likely to arise is where the claimant has sold his story
to a newspaper. The publisher would be entitled to rely on the defence of consent in relation
to defamatory statements that had come from the claimant’s own mouth.

1.3.6 Innocent dissemination under Section 1 of the Defamation
Act 1996

Proceedings for defamation may be commenced against the original publisher of the
offending statement and against anyone who publishes it thereafter. However, the potentially
disastrous effects of such wide liability are mitigated by the defence of innocent
dissemination. Section 1 of the Defamation Act 1996 provides a defence to a distributor who
can show that:

He did not know, and had no reason to believe, that what he did caused or
contributed to the publication of a defamatory statement, and
He took all reasonable care in relation to the publication complained of.
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