Analyse and Assess the Pros and Cons of the Libel Defences of Justification and Fair Comment

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Analyse and assess the pros and cons of the libel defences of justification and fair comment with reference to a minimum of three case studies

Libel law in England is incredibly tough, so much so, that if found to be liable of a

defamatory statement, ‘a statement which lowers someone in the eyes of reasonable

people...’ [Quinn 2009: 210] the consequences can be very costly to both the

journalist themselves and their newspapers and therefore it is very important for the

defences of defamation to be used to full effect an example of this is libel tourism

and the case of involving Roman Polanski 2005. The magazine had said that the

event had take place before the claimant’s wife’s funeral, but it had in fact taken

place after the funeral, which Mr Polanski completely denied. As it could not be

proved, the claimant won £50,000 in damages. There are seven different defences

for the act of defamation, of which two of these, Justification and Fair comment, we

will analyse the advantages and disadvantages below.

For the defence of justification to apply, the defendant must prove that what they

have written and published is substantially true. If this can be proved by the

defendant then they will have a complete defence against the claims of defamation.

The defence of justification may only be used where the defendant has published a

statement of fact.

One of the main disadvantages of the defence of justification is that the burden of

proof relies upon the defendant, which means that they must prove what they have

published to be true. Furthermore, the claimant does not have to prove that what

you have written is false or that any fact found to be false was damaging to their

reputation.

Another disadvantage of this defence is that ‘A defendant cannot rely on the defence

of justification in relation to the publication of the details of spent convictions, as

defined by the Rehabilitation of Offenders Act 1974’ [1] This Act has been brought in

to help with rehabilitation of offenders and prevents journalists from acting in a

malicious manner when relating to cases of this nature.

An advantage of the defence however is that the journalist does not have to prove

that what they have published was in the public’s best interests and furthermore

they do not have to prove that they acted in a malicious manner.

A further disadvantage to the defendant is that any rumour they chose to publish

must be backed up by evidence of the accusation made within the rumour. This

means that the defendant cannot base their evidence alone on a previous rumour.

However an advantage to the defendant comes by way of a case where the claimant

alleges that more than one fact within a publication is untrue. In such a case, the

defendant need not prove that all claims within the publication to be true and must

only prove that ‘the ‘sting’ of a libel’ [Quinn 2009: 212] to be true. This suggests

that only the most important allegations, which are damaging to the claimants

reputation, need to be determined to be true. This can be seen in the case of Turcu

v News Group Newspapers, where the defendant was sued after publishing a

number of defamatory statements including some which were found to be untrue.

However the statement made that the claimant was a ‘petty criminal with a long list

of convictions’ and that ‘he was willing to take part in criminal activities’ were true,

and the defence of justification stood on the grounds that the sting of the statement

remained true.

A further advantage to the defendant is that ‘A claim of justification need not only be

based upon facts as were known at the time of publication; if other facts come to

light during the period between a claim and the case coming to court, they can be

used to back up the defence.’ [Quinn 2009: 214]. This appeared in...
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