The truth defence is found under section 2 of the Defamation Act 2013 and states that: ‘It is a defence to an action for defamation for the defendant to show that the imputation conveyed by the statement complained of is substantially true’. It is not necessary to prove that every detail is true – only that the main part of the allegation is true.

Accordingly, once the claimant has established the defendant’s statement is, on the fact of it, defamatory, the truth defence imposes a reverse burden of proof on the defendant to prove on the balance of proababilities (Meaning that they havemade their case out to be ‘more likely than not’. In contrast, the criminal standard of proof is ‘beyond reasonable doubt.) that the defamatory statement is substantially true. If the defendant is unable to meet this burden, then the statement is presumed to be false. 

Section 3 of the Defamation Act 2013 concerns ‘honest opinion’ and there are three conditions that must be met in order for this defence to succeed: 

1. 1. The first condition is that the statement complained of was a statement of opinion. 
   2. The second condition is that the statement complained of indicated, whether in general or specific terms, the basis of the opinion. 
   3. The third condition is that an honest person could have held the opinion on the basis of-

                a. Any fact which existed at the time the statement complained of was published; 
                b. Anything asserted to be a fact in a privileged statement published before the statement complained of. 

Public interest may also be deployed as a defence instead of, or in addition to, truth. The defence, set out in section 4 of the Defamation Act 2013, contains two limbs that the defendant must satisfy: (i) the publication ‘was, or formed part of, a statement on a matter of public interest’ (section 4(1)(a)); and (ii) ‘the defendant reasonably believed’ that it was in the public interest to publish the statement complained of (section 4(1)(b)). 

Determining the first limb requires an ‘objective evaluation’ in which the court will look at the subject matter of the statement, generally applying a broad definition of public interest. 

The second, subjective, limb imposes two requirements: 

Firstly, the defendant must show they believed that publishing the statement was in the public interest, by demonstrating they have ‘addressed his/her mind to the issue’. Importantly for journalists, this is more likely to be met where the defendant can point to records documenting the pre-publication decision-making process. The court will ask whether the belief they held was honest, usually necessitating the defendant to believe the statement to be true. 

Secondly, in assessing whether the belief was reasonable, pursuant to section 4(2) and (4) respectively, the court ‘must have regard to all the circumstances of the case’ and ‘make such allowance for editorial judgment as it considers appropriate’. This second requirement, therefore, imputes a standard of care into the process of production and publication, which is defined with reference to the pre-Defamation Act 2013 Reynolds criteria (as opposed to it being used as a checklist). 

When it comes to the operation of section 4, Nicklin J’s judgment in Lachaux v Independent Print Limited, Evening Standard Limited [2021] EWHC 1797 (QB) is significant for journalists. In this case, the judge took no issue with the subject matter of the publications, finding that the first limb of the defence was met was they were on a matter of public interest. The defendant publishers’ defence fell down on the second limb, because the quality of the journalism did not reach the required standard expected of professional journalists. The judge found that the newspapers’ journalists had relied on an aggrieved source, failed to take the necessary steps to verify the allegations, and failed to approach the claimant for comment. He also underlined the importance of journalists keeping contemporaneous records of their decision-making processes, finding that in this case they had taken an ‘amateurish approach to the recording of decisions of potentially critical importance’. In other words, they had not applied their minds appropriately. Thus, echoing the jurisprudence of the European Court of Human Rights (see: Bédat v Switzerland (2016) 63 EHRR 15, [50]; Bladet Tromsø and Sensaas v Norway (2000) 29 EHRR 125), this case provides a warning to journalists that, when exercising their Article 10 ECHR rights, they must meet ‘the tenets of responsible journalism’ as part of their ‘duties and responsibilities’, if they want to rely on the section 4 defence. Moreover, as Nicklin J makes clear in his judgment, journalists that adhere to their respective journalism Codes of Practice are more likely to establish reasonable belief.