There are defences to defamation, but they can be difficult and expensive to prove. We recommend getting legal advice before you publish because the defences are technical and can be difficult to prove.

 

Some of the key defences are:

 

Truth: you might know something is true, but actually proving it is a whole different matter. You also have to prove the truth of any defamatory implication that might be derived from your statement. It’s also worth keeping in mind that defamation law works on the presumption that the defamatory statement is false, so the onus is on you to prove.

 

Honest opinion: if you can show that what you have said is your honest opinion, then you might have a defence. Your statement must be recognisable as being an expression of an opinion. But, that honest opinion has to be based on true facts that the person reading your statement can use to assess the validity of the opinion for themselves. The defence can be destroyed if your opinion isn’t genuinely held by you or you made the statement for an improper purpose.

 

Responsible communication on a matter of public interest: there are two elements to this defence. First, you have to show that the communication was responsible. There are a lot of factors involved in showing this, including showing the steps you took to verify the allegation, the reliability of any source you’ve relied on, and whether you have sought comment from the target of your statement and accurately reported their response.  Secondly, you need to show that you were commenting on a matter of public interest. This doesn’t mean something that is interesting (like gossip), but things of substantial concern that effect the welfare of citizens, for example, the management of publicly funded services by local councils.

 

Common law qualified privilege: this defence covers situations where you have a moral, social, or legal duty to communicate your statement and that the recipient of your statement has a corresponding interest in receiving that communication. A common situation covered by qualified privilege is when a prospective employer calls you for a reference for someone that they are thinking of employing. It is unlikely that you will be able to successfully rely on qualified privilege if your statement is published to the world at large – like in a public Facebook group.

 

Keep safe over the holiday season!

 

Joanne Dickson