TRUTH

• This defence applies where the defendant can prove that the statement, however damaging
to the claimant’s reputation, is true.

• This was known as the defence of justification under common law prior to the current act.

• The defence is contained in S.2 Defamation Act 2013 but is essentially the same as a
previous common law defence, which was known as defence of “justification”.

• To apply defence of truth, the defendant needs to show that every single element of what
was said is true, so long as, as a whole, it is “substantially” true.

• That means, minor inaccuracies will not prevent the defence applying, and a statement can
be covered even if not every word is literally true, providing it is broadly accurate, for example, in
the case of Alexander v North Eastern Railway (1865).

• In Alexander v North Eastern Railway (1865), a defendant was found not liable for saying
that the claimant had been sentenced to three weeks imprisonment (when in fact it was two weeks).

• Although this case was brought under the old law, the result would be the same under the
new act (Catherine Elliott and Frances Quinn).

• S.1(2) Defamation Act 2013 provides that where a statement contains two or more
allegations about the claimant, the defendant does not necessarily have to prove all of them,
providing that, having regard to the ones that are proved, the ones that are not proved do not
seriously harm the claimant’s reputation.

• Again, the old law contained a similar provision, so old cases would be decided the same was
today. Gecas v Scottish Television (1992): Scottish Television was sued for accusing the defendant of
the murder of thousands of Jews during the war, when he was head of a police battalion. The
programme included an allegation that he personally ‘finished off’ people who had been thrown into
a burial pit but were still alive. STV could not prove that but, given that they could prove he was
involved in the murders, the burial pit allegation did not materially injure his reputation (the wording
of the test under the old law), and the defence succeeded.

HONEST OPINION

• This is a new defence, established under the Defamation Act 2013 which designed to
promote free speech by protecting defamatory comments and opinions (as opposed to allegations
which are allegedly factual).

• This defence replaces a defence which was traditionally called “fair comment” and the more
recently “honest comment”, and it is to some extent based in the old law, but there are some
differences.

• S.3 Defamation Act 2013 provides for the defence of honest opinion. There is a defence of
honest opinion where:

1. The statement complained of is a statement of opinion. (different from a statement of fact)

2. The statement indicates the basis of that opinion either in general or specific terms,

3. An honest person could have held that opinion, on the basis of:
a) facts which existed at the time the opinion was expressed; OR

b) anything asserted to be a fact in a statement which is privileged under the law of defamation

i. The statement must be a statement of opinion

• The Explanatory Notes to the Bill say that the test should be what an ordinary person would
perceive it to be.

• Catherine Elliot commented that this is in itself fairly vague test.