In looking at some of the defences applied against a defamation suit, we note that there

are those that would revolve around the elements of the tort itself and those on general legal

principles. The following are some of the defences for a defamation suit.

Justification of the Statement. With this regard, the defendant has to prove beyond any

reasonable doubt that the published information is indeed factual beyond any reasonable doubt.

The burden of proof placed on the defendant has to be well presented as in the event that the

court concludes that the plea of truth was unfounded, then the resulting consequences might be

more severe. This kind of an exacting defence has to be well used as one should appreciate the

fact that the plaintiff would not have made such a defamation suit where they knew that the

defendant had indeed published correct information.

Fair comment. This particular defence relies on the deals of freedom of expression

especially where comments are made for the interest of the public. As such, this defence if based

on certain conditions. First, the court must consider the words as to being comments that would

in turn cover inference, observation or a statement of conclusion all of which must have been

based on the context of a critique, commentary or evaluation. Moreover, the comment must be

based on actual facts without which the plaintiff can assert the comments were based on malice.

The Supreme Court of Canada in WIC Radio Ltd. v. Simpson (2008) recognized that with this

line of defence, any individual can express proven facts (Berg, 2014).

Absolute privilege. This can be regarded as a complete defence where malice is not

applicable. It is usually applicable in four broad spectrums: comments made in legislative

organs, statements made during judicial proceedings by officers of the court, or high-ranking

executive officers. It is important to take note of the fact that the comments for the judicial and

executive conditions, they must be made in relation to the scope of their mandate an in the course

of official proceedings. An exemption to this rule for the legislative member can be seen in the

Tenney v. Brand (1951) where such comments were entirely irrelevant to the proceedings. The

protection of judicial officers and executive from suits based on this grounds have been tested in

the cases of Irwin v. Ashurst (1938) and Kilgore v. Younger (1982) respectively. This defense on

absolute privilege allows spouses to make defamatory statements on a third person to their

spouse (Berg, 2014).

Qualified privilege. The basis of this defense is where the defendant has a legal, social or

moral authority to submit a communiqué on the plaintiff to a recipient who has a justifiable

reason to receive the communiqué. The Pullan v. Hill Ltd. (1981) case provided succinct grounds

for the admissibility of this defense. It is important to take note of the fact that the communiqué

should not be made with vindictiveness or a desire to cause humiliation to the defendant. A

classic example can be taken to be in the workplace where a team leader submits an employee

profile to the human resource department. It is important to note that in the event of transmission

of privileged information and parties that had no business in receiving the data, then the

defendant can be liable for damages for the information being given to non – privileged parties.

Retraction of a Defamatory Statement. In cases where the defamer moves to retract a

statement and also and a genuine and sincere apology to the affected party, then one can use it as

a defence during a defamation suit. Moreover, the defendant should provide notice to all the

persons who received the defamatory statement. In some other cases, the defendant can try to

make amends with the plaintiff and where it fails, they can use it as part of their defence.

Defence based of Elements of Defamation. Looking at some of the elements of

defamation, one can use any of them as a potential source of defence. For example, if the

defendant did not make any publication, then they can put across such fact and leave it upon the

plaintiff to prove otherwise. If the defendant can prove to court that indeed no damage was done,

then so be it. It would be upon the plaintiff to show the extent of the damage done. In some other

cases, the defendant can make every effort to prove that the publication made was in no way

defamatory in which case it would be a case based on cultural perceptions.

Bibliography

Berg, D. (2014). Privileges and Defenses in Defamation Cases. Retrieved June 3, 2014,

from NOLO Law for All: http://www.nolo.com/legal-encyclopedia/privileges-defenses-

defamation-cases.html

Lawrence, F. (2007). Truth or Fiction”, Sticks and Stones – The Law of Defamation,in

GUARDING LIFE’S DARK SECRETS: LEGAL AND SOCIAL CONTROLS OVER

REPUTATION, PROPRIETY AND PRIVACY. California: Stanford University Press.

NPC. (2014). Defenses to Defamation Charges. Retrieved June 3, 2014, from National

Paralegal College: http://nationalparalegal.edu/public_documents/courseware_asp_files/torts2/

Defamation/DefensesToDefamation.asp