In an action for defamation the plaintiff is not bound to show the statement is untrue because the law presumes that in his favour. However, the defendant can plead justification or, as it is now called, the defence of truth under the Defamation Act.
Section 7(2) of the act provides: “Where an action for defamation has been brought in respect of the whole or any part of matter published, the defendant may allege and prove the truth of any of the charges contained in such matter and the defence of truth shall be held to be established if such matter, taken as a whole, does not materially injure the plaintiff’s reputation having regard to any charges which are proved to be true in whole or in part.”
To plead the defence of truth the defendant must prove that the content of the statement published was true. It is not a defence simply to prove that the statement was made. A calypsonian who repeats the statement that he has heard over the radio or read in the newspaper will not be protected simply by proving that he heard the statement on the radio or that he read it in the newspaper.
Therefore, if a statement is made that “Y has stolen from his employers” it can only be defended by proving that Y has in fact stolen from his employers and not by proving that the report on the radio or in the newspaper stated that Y has stolen from his employers.
Another defence that is available to defamation is fair comment. Section 8 of the Defamation Act stipulates that this defence shall now be known as “the defence of comment on a matter of public interest.”
Very often a person faced with an action for defamation will argue that his statement is a fair comment on a matter of public interest.
It is usually this defence which permits robust criticism of politicians and other public figures. It is a question for the judge to determine whether the matter commented upon is of public interest.
In the English case Silkin vs Beaverbrook Newspapers Ltd (1958), Lord Diplock referred to the significance of the right of fair comment in these words:
“Freedom of speech, like the other fundamental freedoms, is freedom under the law, and over the years the law has maintained a balance between, on the one hand, the right of the individual . . . whether he is in public life or not, to his unsullied reputation if he deserves it, and on the other hand, but equally important, the right of the public . . . to express their views honestly and fearlessly on matters of the public interest, even though that involves strong criticism of the conduct of public people.”
Among the requirements of the defence of comment are the following:
1. It must be based on fact contained in or referred to in the publication complained of.
2. The facts must be sufficiently true to make the comment fair.
3. The comment must represent the honest opinion of the commentator, and be published without malice.
It is often the case that the defence of fair comment fails because the comment is not based on facts. A defendant who pleads the defence of fair comment will only succeed if the facts are truly stated with respect to the matter of public interest and it is found as a fact that the comments were fairly and honestly made.
However, note must be taken of Section 8(2) of the Defamation Act which provides that:
“In an action for defamation in respect of words including or consisting of expression of opinion, a defence of comment shall not fail only because the defendant has failed to prove the truth of every relevant assertion of fact relied on by him as a foundation for the opinion, provided that such of the assertions are proved to be true are relevant and afford a foundation therefor.”
This section modifies the common law position which required that each fact stated must be shown to be true to enable the defence of fair comment to succeed.
•Cecil McCarthy is a Queen’s Counsel. Send your letters to: Everyday Law, Nation House, Fontabelle, St Michael. Send your email to [email protected]
