Limitation
The limitation period is one year. Unlike in
the U.S., there is no single publication rule.
Every time defamatory material on the
Internet is accessed in England, a new tort
is committed and the one year limitation
period recommences.
Defences
Justification
The main defence is justification or truth. In
contrast to the U.S., the burden of proving
the truth of the allegation in England is on
the publisher/broadcaster. Justification is
normally judged by the jury. If a defendant
claims that the allegations are justified but
loses at trial, the mere fact of relying on this
defence will aggravate damages. Thus, it is
advisable to make a speedy decision on
whether to justify.
Publishers/broadcasters must take into
account the 'repetition rule' which states
that the sentence "X said that Y is a thief"
means that "Y is a thief", not that X said it.
Therefore it is not enough to prove that
another person has previously made the
same allegation.
A further difficulty for publishers /
broadcasters is the 'conduct rule'. If the
meaning is at level 2 (reasonable grounds to
suspect), then justification must generally be
by reference to the claimant's conduct
which gave rise to the suspicion at the time
of the publication. The fact that someone
else, e.g. the police or the FBI, has made
the allegation is not relevant.
Evidence acquired after the time of
publication can be used to justify a level 1
meaning.
Fair comment
For statements of opinion, a
publisher/broadcaster will have a defence if
the opinion is:
honestly held,
based on true facts, and
concerns a matter of public importance.
The defence is defeated by the claimant
showing that the publisher/broadcaster was
malicious, i.e. the defendant wished to
injure the claimant or was reckless as to the
truth of the allegation.
Qualified privilege
There is a public interest defence called
qualified privilege. This is useful not only if
the publisher/broadcaster cannot prove the
allegation is true but also where the
allegation is false. However, to succeed the
publisher / broadcaster must show that it
had a duty to publish the information and
the recipient had a reciprocal duty or
interest to receive it. In the context of the
media, journalists must show that they had
reached the court's standard of responsible
journalism. The court will take into account
all the circumstances at the time of
publication/broadcast, including:
The seriousness of the allegations,
The steps taken to verify the story,
The quality, independence and number of
sources,
The steps taken to contact the claimant
and put the allegations to him for
comment,
Whether the article contains the gist of
the claimant's side of the story,
The tone and balance of the story,
The necessity to publish/broadcast at the
time.
Qualified privilege is assessed by the judge
(although any relevant findings of fact are