Defences to Defamation

In one line

The defences are truth, fair comment, absolute privilege, qualified privilege and apology, and malice destroys only the fourth.

In the wording a student can write in an exam: the defences to an action for defamation are justification by truth, which is a complete defence in civil law; fair comment on a matter of public interest, which protects an opinion honestly held and based on true facts; absolute privilege, which protects statements made in Parliament, in judicial proceedings and in certain official communications, however malicious; qualified privilege, which protects a statement made in the discharge of a duty or in the protection of an interest to a person having a corresponding interest, and which is defeated by proof of malice in fact; and apology, which is not a defence at common law but may mitigate damages.

1. Justification, or truth

In a civil action, truth is a complete defence, and the defendant need not show that publication was for the public good.

The whole sting must be proved. It is enough that the statement is substantially true; a minor inaccuracy that does not change the sting does not defeat the defence.

The burden is on the defendant. The law presumes the falsity of a defamatory statement, so the plaintiff need not prove it false.

In the CRIMINAL law the defence is narrower. Section 356 of the Bharatiya Nyaya Sanhita 2023 makes truth a defence only where the imputation is true and its publication is for the public good, which is a question of fact. That difference between the civil and criminal defences is a favourite examination point.

2. Fair comment

The defence protects opinion, not fact, and it has four conditions.

It must be a comment, that is, an expression of opinion, and not an assertion of fact. "He is a dishonest judge" is an allegation of fact; "his judgment shows he did not read the record", based on the judgment, is comment.

The facts on which it is based must be true, and must be stated or sufficiently indicated so that the reader can judge the comment for himself.

It must be on a matter of public interest: the administration of justice, the conduct of public servants, public institutions, published books, plays and performances, and anything a person submits to public judgment.

It must be fair, in the sense of being an opinion an honest person could hold on those facts, however prejudiced or exaggerated. Malice defeats it, because a comment made from an improper motive is not honest.

3. Absolute privilege

Where the occasion is absolutely privileged, no action lies at all, however false the statement and however malicious the maker. The categories are narrow and each rests on a reason of public policy.