DEFAMATION ACT 2009

Key Features of Defamation Act 2009

Key Features of Defamation Act 2009

Introduction

Defamation has been redefined in the Act. The Act abolishes the separate torts of libel and slander, and replaces them with the “tort of defamation”. The tort of defamation consists of “the publication, by any means, of a defamatory statement concerning a person to one or more than one person”.

A “defamatory statement” is defined as one “that tends to injure a person's reputation in the eyes of reasonable members of society”. The current definition developed by the common law is a false statement “which tends to lower that person in the eyes of right thinking members of society or which tends to hold that person up to hatred, ridicule or contempt, or causes that person to be shunned or avoided by right-thinking members of society”. It is not anticipated that this new definition will have significant practical impact (Kenyon, 2006, 30-37). A defamatory statement can still be summarised as a lie that damages your reputation.

Defences

Qualified privilege

The Act gives the defence of qualified privilege a statutory basis. In addition to providing a list of statements having qualified privilege, it also expressly provides that the defence of qualified privilege will be triggered where the defendant proves that: the statement was published to a person(s) who had a duty or an interest in receiving the information contained in the statement, or the defendant believed upon reasonable grounds that the person(s) had such a duty or interest, and that the defendant had a corresponding duty or interest in communicating the statement to such person(s). This is similar to the traditional duty/interest test which previously existed at common law for determining whether an occasion of privilege arose. The defence of qualified privilege will fail if the plaintiff proves that the defendant acted with malice.

Honest opinion

The Act replaces the defence of fair comment with the statutory defence of “honest opinion”. It contains very similar criteria to those for the current “fair comment” defence. It is difficult to envisage significant practical change from the current defence of fair comment to this new defence. An opinion is honestly held if: (a) the defendant believed in the truth of the opinion; (b) the opinion was based on allegations of fact; and (c) the opinion related to a matter of public interest.

The defendant must prove not only that the opinion is based on allegations of fact, but also that the allegations are true. The defence will fail unless the defendant proves the allegations of fact are true, or where he does not prove the truth of all the allegations, that the opinion is honestly held in respect of those allegations of fact the truth of which has been proved. The fact that the defendant believed the allegations to be true is insufficient.

Offer to make amends

The offer to make amends procedure in the Act is not merely a replacement of its predecessor under the Defamation Act ...