5A Defamation : The Defences
Justification or truth
The main defence to a libel action is ‘justification' i.e. being able to prove
that the defamatory allegation is true.
Fair comment
Another defence is ‘fair comment', which protects honest and sincere opinion, based on true facts, on matters of public interest. This defence, however, is not as ‘easy' as it sounds and can be defeated if it can be shown that the person being sued was ‘malicious' i.e. was reckless with regard to the truth e.g. the filmmaker didn't make proper journalistic enquiries.
Other defences
There are other defences to libel such as absolute and qualified privilege, which attach to the reporting of certain proceedings e.g. the fair and accurate reporting of UK court proceedings or proceedings in the UK parliament. ‘Qualified privilege' is so called because it too is defeated by malice. If a person consents to being libelled, this is also a defence. Broadcasters may also be able to avail themselves of a specific defence relating to live broadcasts if a libel occurs unexpectedly.
'Reynolds Privilege'
In recent years, the courts have also developed a defence commonly referred to as "Reynolds privilege", which protects responsible journalism on matters of important public interest. However, programme-makers should note that this defence is not as straightforward as it may first appear and detailed legal advice should always be sought wherever it is intended to rely upon it. See 'Opportunity to Respond'.