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 have made 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. 

This defence protects free speech and also irony/comedy and can be used for reviews too. 

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. 

Absolute privilge applies to court proceedings help in public around the world and so this means that it applies to criminal, civil, coroner’s courts, tribunals, European Court of Human Rights. It also applies to politicians speaking in parliament to allow free speech. The key requirements are that the article/articles published must be fair, accurate and published contemporaneously. However, comments that are shouted from the public gallery should not be reported if the person is not ‘concerned in the proceedings’. Defamatory comments made on the steps outside court, e.g. about the judge or the police, should not be reported as there is no provilege outside court. 

Qualified privilege is a second type of privilege and it protects non-contemporaneous court cases and certain types of information or statements, for example from public meetings, press conferences, parliamentary debates and council meetings. It gives protection to lobby journalists reporting from parliament. Copy must be fair, accurate, on a matter of public interest and published without malice. 

It is set out in Schedule 1 of the Defamation Act 1996. Part 1 focuses on statements that can be published ‘without explanation or contradiction’. Part 1 includes: Governmental statements, public inquiries, high level conferences (e.g. COP27), public documents, (e.g. register of births, marriages and deaths), court notices or advertisements, extracts from government reports. 

Part 2 focuses on statements that are subject to ‘a reasonable letter or statement of explanation or contradiction (right of reply)’. Part 2 includes: Material issued by governments and government bodies in any EU member state, including the police:

• Extracts from documents published by courts in EU member states and the European Court of Justice
• Proceedings of UK local councils; tribunals; commissions; inquiries. 
• Public meetings (e.g. Council meetings, paris council meetings, public meetings in any EU member state; the Channel Islands and the Isle of Man, including press conferences)
• Information and reports from public companies 
• Decisions made about and information from: trade associations, sports governing bodies (e.g. the FA), charities
• AGMs of limited companies

Qualified privilege only protects reports of actual proceedings, for example, what is said in a council meeting. You are not protected if you report what someone says outside the meeting and what they say is defamatory.