19 February 2020 - Article
The new defence of truth under section 2, Defamation Act 2013 ‘The truth is a beautiful and terrible thing, and should therefore be treated with great caution'. They are the wise words of Professor Dumbledore of Hogwarts fame. Whether or not it is beautiful and terrible, a new statutory defence of ‘truth' has replaced the old defence of justification.Under the old rules, while an allegation might have been defamatory in that it tended to lower the claimant in the estimation of right minded members of society, the defendant would escape liability if he were able to show that the allegations were true or substantially true. The new statutory defence of truth is an attempt by the legislature to reflect and consolidate the ever increasing body of case law that has developed over the years. We have already set out in our blog of 27 February 2014, that under the new act, for a claim to be defamatory, it must have caused or be likely to have caused the claimant serious harm to his reputation – www.withersworldwide.com/blog/you-cannot-be-serious/. Now, such a statement will be defensible under the new section 2 if the defendant can prove that ‘the imputation conveyed by the statement complained of is substantially true'. As with the old rules, there is no need for the defendant to prove that every single word published was true (for the section watchers amongst us, section 2(2) effectively reflecting the old section 5). It is sufficient for the defendant to establish the ‘essential' or ‘substantial' truth of the sting of the libel; that is what is at the very heart of the libel impacting on the claimant's reputation. But what if there is more than one allegation in the publication complained of, that for example, the subject is a shoplifter and a murderer? Similar to the old rules, the new Act confirms that where the statement complained of contains two or more distinct imputations, the defence does not fail if, having regard to the imputations which are shown to be substantially true, those which are not shown to be substantially true do not seriously harm the claimant's reputation. So to allege falsely that a man who is a shoplifter is also a murderer, would be likely to cause the shoplifter serious harm to his reputation, be actionable and not defensible on the grounds of truth. But a defendant making similar allegations about a man who is a murderer, but not a shoplifter, would have a much better crack at defending a false assertion that the murderer had also pinched a packet of chewing gum. The new statutory defence of truth does not look set to be a game changer. Indeed, despite the abolishment of the common law defence of justification, it is likely that the legal principles developed by case law over the years will be invaluable in assisting the courts to interpret how the new statutory defence should apply, especially during the Act's infancy. And that is not to be sniffed at, if it will serve to modernise and consolidate the principles which have been considered by the courts over the years. The truth is not always palatable, but the defence that bears its name is an important defence in a democracy where freedom of speech is a vital component. But where defamatory allegations are made that are not true, they can cause untold and terrible damage to a reputation. To use Professor Dumbledore's words, making unsustainable attacks on others where they cannot be proved to be true, is really what should be ‘treated with great caution'.