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Winner of the SLS Annual Conference Best Paper Prize 2010: ‘Veritas non est defamatio’? Truth as a defence in the law of defamation

  • Eric Descheemaeker (a1)


Despite the limited exception introduced by statute in 1974, the principle that truth is and ought to be a complete defence to all actions in defamation is typically regarded as self-evident in modern English law. The fact that England stands here against not only the whole of the civilian tradition but also a number of common-law jurisdictions suggests, however, that it is not. This paper, after surveying the history of the principle in English law and the debates that it has spurred in the past, argues that English law is right on this question, but needs to understand more cogently why. This, in turn, requires an examination of the interests protected by the cause of action. It is only if we accept that it is, and is solely, reputation founded in character that the defence of veritas will be secured.



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1. The name is traditional and virtually as old as the action upon the case for words, from which the bulk of the modern law of defamation emerged. The defendant who wished to rely on the truth of the incrimination complained of by the plaintiff could not content himself with the general plea of ‘not guilty’, but had to plead the matter specially (Helmholz, pp lxxxv and cvii). If he proved the truth of the sting, he was said to have ‘justified’, and judgment would be entered in his favour. In Scotland, the defence is called ‘veritas’, the Latin word for truth, while in New Zealand it has been renamed ‘truth’ (Defamation Act 1992, s 8(1)). The Faulks Committee, which reported on the law of defamation in 1975, recommended that English law do the same (Faulks, s 129). This was not followed at the time, but the Defamation Bill introduced in the House of Lords by Lord Lester of Herne Hill in May 2010 has finally taken this step: Defamation HL Bill (2010–11), cl 4. Etymologically, ‘to justify’ (justificare) means ‘to make just’; the very word suggests that the truth of the matter at hand is, in and by itself, reason enough to speak the words. In this paper, I shall refer to this view as the ‘veritas principle’.

2. Etymologically, to de-fame (dis-fama) is to deprive (dis) of one's fame, honour or reputation (fama). In modern English law, three tests coexist to determine the defamatoriness of words. The principal test, of lowering (or rather, ‘tend[ing] to lower’) the plaintiff ‘in the estimation of right-thinking members of society’ was articulated in its modern form by per Lord Atkin in Sim v Stretch [1936] 2 All ER 1237 at 1240. This test is supplemented by the ‘ridicule’ test (traceable back to Mason v Jennings [1680] Raym Sir T 401, 83 ER 209) and the ‘shun and avoid’ test. Dr McNamara has rightly pointed out that the existence of these supplementary tests evidences a drift of the law of defamation into concerns that ought not to be its (McNamara, p 231; see also pp 141–159 and 161–189). This is a point which will be returned to in part 3 below.

3. Rehabilitation of Offenders Act 1974, s 8(5) (see the section below ‘Rehabilitation of Offenders Act 1974’).

4. M’Pherson v Daniels (1829) 10 B & C 263, in particular Littledale J's opinion, below n 17.

5. Among modern leading textbooks, only Winfield & Jolowicz on Tort does a little more than simply stating the rule and (possibly) referring it to M’Pherson. It tries to justify the defence on a principled basis, but simply updates Winfield's original argument from 1937, which itself had been closely modelled on Pollock's views ( Winfield, P A Text-Book of the Law of Tort (London: Sweet & Maxwell, 1937) pp 290291 ; cf Pollock, F The Law of Torts (London: Stevens and Sons, 1887) p 223).

6. E Descheemaeker ‘“A man of bad character has not so much to lose”: truth as a defence in the South African law of defamation’ (forthcoming) part II.1. The issue is shrouded in uncertainty and much revolves around the interpretation of D.47.10.18 pr (Paul, 55 Edict); but the nature of iniuria as affront (contumelia) makes it almost certain that truth was not, in itself, sufficient justification to escape liability. The best interpretation seems to be that only absence of animus iniuriandi (intention to insult) would displace the prima facie finding of liability prompted by defamatory conduct. Iniuria (outrage, insult, contempt) was the civil wrong which comprised all that we would, today, refer to (on the civil side) as ‘defamation’. In that sense, Roman law had a law of insults pertaining to reputation rather than a law of injuries to reputation.

7. See, eg, Gordley, J Foundations of Private Law (Oxford: Oxford University Press, 2007) pp 243245 ; Blackie, J ‘Defamation’ in Reid, K and Zimmermann, R (eds) A History of Private Law in Scotland vol 2 (Oxford: Oxford University Press, 2000) p 633 at pp 666–671.

8. McKellar v Duke of Sutherland (1859) 21 D 222 at 227. However, besides the law of defamation, there exists in Scotland a law of convicium where truth is no defence ( Walker, D The Law of Delict in Scotland (Edinburgh: W Green, 2nd edn, 1981) p 738.

9. See, eg, Botha v Brink (1878) Buch 118 at 121–122 and generally E Descheemaeker, above n 6, part III. The two principal modern heirs of Roman law, France and Germany, are comparatively uninteresting for the present purpose because they transferred the bulk of their law of defamation to criminal law in the nineteenth century (Loi du 29 juillet 1881 sur la liberté de la presse; s 186 StGB). On the civil side of French law, a true statement might be actionable under Art 1382 of the Civil Code if it amounts to a ‘faute ’, which médisance (disparagement, malicious gossip, backbiting) might ( Mazeaud, H and L and Tunc, A Traité théorique et pratique de la responsabilité civile vol 1 (Paris: Montchrestien, 6th edn, 1965) p 570 ). The question whether truth simpliciter is a complete defence does not appear to have been raised in the residual non-criminal law of defamation in Germany.

10. In Australia, the first divergence from the English common law occurred in 1847, when New South Wales introduced the extra requirement of ‘public interest’, besides truth, for the defence of justification to succeed (below, text to n 46). Queensland, Tasmania and the Australian Capital Territory later introduced a requirement of ‘public benefit’. Other states and territories retained the position of the English common law. In 2005, the (uniform) Defamation Act re-established truth simpliciter as a defence to an action in defamation.

11. Starting with Maine in 1841 – therefore before the English Libel Bill of 1843 (below, text to n 41) – a number of American states started to move to a conditional defence of truth, verity having to be supplemented with a combination of ‘good motives’ (or ‘intent’), ‘justifiable ends’ or the ‘public information’ character of the statement. Alternatively, truth would be defeated by proof of ‘corrupt’, ‘malicious’ or ‘mischievous’ motives on the part of the defendant ( Franklin, M ‘the origins and constitutionality of limitations on truth as a defense in tort law’ (1964) 16 Stanford Law Review 789 at 790–805 and 835–848); Ray, R ‘Truth: a defense to libel’ (1931-32) 16 Minnesota Law Review 43 at 51–53; Harper, F, James, F and Gray, O Harper, James and Gray on Torts vol 2 (New York: Aspen Publishers, 3rd edn, 2006) pp 194195. The Restatement of Torts recommended that truth simpliciter should be a defence in all states: American Law Institute Restatement of the Law (Second): Torts 2d vol 3 (St Paul, MN: American Law Institute Publishers, 1977) p 235. The requirements of ‘good motives’ and ‘justifiable ends’ come straight from Alexander Hamilton's argument in an 1804 criminal trial in New York (People v Croswell, 3 Johns Cas 337 at 360 (NY Sup Ct)). Contrary to the Australian, the American developments are very much indigenous and will be left aside in this paper.

12. 2 Selden Society 82. The record has the word spelt ‘defamacio’. The original Latin word ‘diffamatio’ is post-classical and was not used in a legal sense. It generally meant ‘publishing, promulgation’, even though the verb ‘diffamare’ can be found in Tacitus and Apuleius in the sense of ‘slandering’ (Oxford Latin Dictionary, ‘diffamo’). The word underwent a change of prefix, from dif- (dis-) to de- in middle English (Oxford English Dictionary, ‘defamation’, ‘defame’).

13. In English law, truth has always been regarded as pertaining to the rebuttal of a prima facie cause of action, rather than its absence as an ingredient of liability. This point is not discussed here, even though it is arguable that it ought to be for the claimant to prove falsity. As to ‘defamation’, it is simply understood as the reunion – in mathematical terms – of the causes of action known historically as ‘slander’ and ‘libel’: it covers exactly the same territory as these two actions.

14. In short, truth was – at least on the face of the record – irrelevant until 1843; since then, ‘truth in the public benefit’ has been a valid defence (Libel Act 1843, s 6). See Law Commission Working Paper No. 84: Criminal Libel (London: HMSO, 1982) ss 2.1–2.22. Keeping civil defamation apart from criminal libel is not, of course, denying that the latter has historically had a strong influence on the former.

15. Eg Fraser, H Principles and Practice of the Law of Libel and Slander (London: Reeves and Turner, 1893) p 72 ; Gatley, C Law and Practice of Libel and Slander in a Civil Action (London: Sweet & Maxwell, 1920) p 106 ; Duncan, C and Neill, B Defamation (London: Butterworths, 1978) p 54 ; Walker, R and Carter-Ruck, P Carter-Ruck on Libel and Slander (London: Butterworths, 3rd edn, 1985) p 85 .

16. This is a point that cannot be explored in the present context; but it needs to be noted that the defence of truth has historically been intertwined with the requirement of malice. Until this condition became fictitious in the modern law (ushered in by Hulton v Jones [1910] AC 20), a requirement of actionability in defamation was that the words complained of should have been uttered maliciously, a condition that was presumed and was understood, at least until Bromage v Prosser (1825) 4 B & C 247, 107 ER 1051, to mean with ill-will against the defendant. Truth was often – albeit wrongly – regarded as one element, among others, that could be used to rebut this presumption of malice. It is not until 1829 that Littledale J clearly distinguished them in M’Pherson (above n 4, at 272: ‘the truth is an answer to the action, not because it negatives the charge of malice, (for a person may wrongfully or maliciously utter slanderous matter though true, and thereby subject himself to an indictment,) but because it shews that the plaintiff is not entitled to recover damages’). The idea, however, continued to surface after that date. For a similar line of argument on the civilian side, see E Descheemaeker, above n 6, parts II.1 and III.2.a.

17. M’Pherson v Daniels, above n 4, at 272.

18. See the section below ‘Arguments for the rule’ and n 85.

19. Owughan v Baker Trinity Term 1507 (Court of Common Pleas); Helmholz, p lxxii and no 61. Baker, Jh The Reports of Sir John Spelman vol 2 (London: Selden Society, 1978) p 237 , mentions several cases from 1508.

20. Reymond v Lord Fitzwauter 6 October 1521 (King's Bench), 2 Spelman Reports 2. The plaintiff complained that the defendant had published that he was the villain of some lords, ‘so that he was unable to grant his lands’. Response of the court: ‘if he was a villein in fact, then he has no cause of action’. On the position of the canon law of defamation as it was applied in England, where truth was on the face of it irrelevant but plaintiffs almost invariably alleged falsity, see Helmholz, pp xxx–xxxii.

21. Legat v Bull Trinity Term 1533 (King's Bench), 1 Spelman Reports 6.

22. Ibid.

23. Ibid.

24. His position foreshadows that of Grotius, for whom truth would only be a defence to an action for defamation (‘lastering ’) when ‘information is given to the authorities with a view to the punishment of crime’ ( Grotius, H [RW Lee (transl)] The Jurisprudence of Holland (Oxford: Clarendon Press, 1936) p 481 ).

25. The Lord Cromwell's Case (1578–81) 4 Co Rep 12b (King's Bench Division).

26. 11 Mod 99 at 99 (King's Bench Division): ‘A man may justify in an action upon the case for words, or for libel; otherwise in an indictment’ per Holt CJ.

27. Beavor v Hides 2 Wils KB 300 at 301 (King's Bench Division): ‘if such words are true, where is the slander?’ per Lord Camden.

28. The Court of Star Chamber had been empowered to punish certain types of defamatory printed words. It was therefore primarily concerned with criminal libel; but could also be used to seek private redress. Being concerned with the suppression of duelling rather than the reputation or character of the libelled person, the Star Chamber unsurprisingly did not admit the plea of justification in criminal proceedings: ‘for, as the woman said she would never grieve to have been told of her red nose if she had not one indeed’ (W Hudson Treatise of the Court of Star Chamber (1621), cited in Baker, Jh and Milsom, Sfc Sources of English Legal History (London: Butterworths, 1986) p 651 ).

29. Lake v Hatton Hobart 252.

30. Ibid at 253.

31. Ibid.

32. R v Roberts (1735) Cun 94.

33. Ibid at 94.

34. The rest of the judges responded – still obiter – to Lord Hardwicke's suggestion by giving it a further tweak: that words spoken might be justified, but not words ‘put into writing’ (ibid at 95). The distinction was largely overlapping with that between criminal and civil actions, but obviously not identical to it. The basis of the proposed distinction was that defamatory words can only be put down in writing out of ‘deliberate malice’; whereas the spoken words are presumed to be the effect of ‘heat and passion’, thereby rebutting the presumption of malice. This view made its way into Bacon's Abridgment ( Bacon, M A New Abridgment of the Law vol 4 (London: E Richardson and C Lintot, 1762) p 516 ), but was without posterity.

35. Mitchell, p 487; on the 1843 Act see below, text to n 41.

36. As far as we can tell, this had also been the position of ecclesiastical courts and local courts in earlier centuries (Helmholz, pp xxx–xxxii and liv–lv).

37. Rehabilitation of Offenders Act 1974 (c 53), s 8(5): ‘A defendant in any [defamation] action shall not… be entitled to rely upon the defence of justification if the publication is proved to have been made with malice’. The term ‘malice’ is not defined by the Act; but Lord Diplock (who introduced the word in the Bill) made it clear during the preparatory works that he meant it in the sense defined by himself earlier that year in Horrocks v Lowe [1975] AC 135, 149 (Hansard HL Deb, vol 353, cols 1806–1852, 24 July 1974, at col 1812). The origins of the Bill are to be found in the report of a committee set up by a number of law reform organisations ( Justice, et al Living it Down: The Problem of Old Convictions (London: Stevens, 1972). The Chairman of the Committee was Lord Gardiner, who sponsored the Rehabilitation of Offenders Bill in the House of Lords (on him, see Box, M Rebel Advocate: A Biography of Gerald Gardiner (London: Victor Gollancz, 1983) esp p 215). Originally, the Bill had done away with the defence of justification altogether – considering that the defences of absolute and qualified privilege were enough to protect, obliquely, true statements. This faced opposition in both Commons and Lords, and a partial defence of veritas was reintroduced, the condition of truth being supplemented with a requirement that the ‘publication of the words complained of was in the public interest’ (Hansard HL Deb, vol 353, cols 1806–1852, 24 July 1974, at 1811). The test of ‘public interest’ was changed later to that of ‘malice’ at the instigation of Lord Diplock, who feared that challenging the defendant to prove public interest would end up, contrary to the purpose of the Act, worsening the fate of the claimant by making his opponent go ‘into the details of the conviction’ (ibid, at 1812).

38. See the section below ‘Arguments against the rule’.

39. Starkie (2nd), pp lii–liii. The argument appeared even earlier in the context of criminal libel; see, eg, Lord Fox's Bill, below, text to n 72.

40. Bill for Securing the Liberty of the Press 1816, cl 11; see Mitchell, p 479.

41. Lord Campbell explicitly referred to the – criminal – Code for Louisiana drafted by Livingston [not ‘Livingstone’] (Hansard HL Deb, vol 66, cols 395–409, 13 February 1843, at col 404); and French and Scottish witnesses were also called to testify before the Committee.

42. 1843 Report, p vii (emphasis added). Lord Campbell attempted during the discussion of the Bill to change the language from ‘public benefit’ to ‘public interest’, although he did not explain on what basis (Hansard HL Deb, vol 70, cols 1252–1259, 18 July 1843, at cols 1252–1253). Lord Brougham, understanding the term ‘public interest’ to refer to what the public actually was interested in, rather than what it ought to be interested in, rejected the proposal on the ground that ‘it might be said, that the public had and took a deep interest in all matters of slander and defamation – the more discreditable the better and it was remarkable, also, that the female sex felt a more lively interest in such matters than the male sex’ (ibid, at col 1253).

43. Hansard HC Deb, vol 71 cols 868–894, 16 August 1843, at col 882. The Attorney-General at the time was Sir Frederick Pollock, grandfather to the namesake textbook writer.

44. Hansard HL Deb, vol 71, cols 987–995, 22 August 1843, at col 987.

45. Ibid, at col 992; cf below, text to n 65.

46. Mitchell, pp 492–495.

47. At common law, the case of Leyman v Latimer (1877) 3 Ex D 15, 352 has sometimes been interpreted as ruling that it was actionable in defamation to publish a spent or pardoned conviction (eg S Stoljar ‘A re-examination of privacy’ (1984) 4 Legal Studies 67 at 83–84); but this is a misreading of the case. What happened in that instance is that the plaintiff, having been called a ‘convicted felon’, sued in defamation and argued that, while he had truly been convicted of felony, he had suffered his sentence and should be treated henceforth as if he had never been convicted, thereby depriving the defendant of the defence of justification. The defendant demurred; and the court gave judgment for the plaintiff. However, the basis of their decision was clearly the fact that, by calling the plaintiff ‘a convicted felon’, the defendant had attached to his adversary the infamy of felony as if he was still undergoing his punishment. The court, explicitly at first instance (at 21) and implicitly on appeal, found that the defendant would have been allowed to rely on the defence of justification had he spoken of the conviction in the past.

48. Porter, S Report of the Committee on the Law of Defamation (London: HMSO, 1948) ss 74–78.

49. Faulks, ss 137–139. The two motives invoked were, first, that the notion of ‘public interest’ was too vague and, secondly, that it would be inappropriate to allow a wrongdoer to recover damages for the publication of his wrongdoing, which would be an indirect way for him to benefit from it.

50. Faulks, N Interim Report of the Committee on Defamation (London: HMSO, 1974) p 1 : ‘a serious and unjustifiable inroad on the freedom of the individual to tell the truth’.

51. Starkie (2nd), esp pp xxxiv–cxxxii. The long ‘preliminary discourse’ in which this discussion features was absent from the first edition of the treatise in 1813. The 90-odd pages devoted by Starkie to the matter, although not always enlightening, dwarf in length any other academic discussion of the principle since 1830.

52. The debate abounded in unjustified assertions, but was rather low on substantive arguments: see 1843 Report, esp pp iv and 39–40 (examination of Thomas Starkie) and 141 (examination of John Borthwick); Hansard HL Deb, vol 70, cols 1252–1259, 18 July 1843, esp at col 1253 (Lord Campbell); Hansard HC Deb, vol 71, cols 868–894, 16 August 1843, esp at cols 870, 878 and 885; Hansard HC Deb, vol 71, cols 908–909, 17 August 1843.

53. The Law Quarterly Review and the Cambridge Law Journal published nothing on the Act in the period 1974–1979. The Modern Law Review published brief descriptive notes on the Act (38 MLR 429) and the Faulks Report (39 MLR 187). The debate in Parliament – and also in the correspondence columns of The Times – was, on the other hand, heated; but most of it remained at an infra-legal level, question-begging assertions succeeding real-life cases destined to arouse the emotion of the audience or, on the other side, grandiloquent appeals to the value of truth: see Hansard HL Deb, vol 338, cols 708–725 and 734–798, 1 February 1973, esp at cols 747–749 and 764–766 (Lord Ballantrae reiterating the strong opposition of the Faulks Committee), 773–774, 775–776 and 798; Hansard HL Deb, vol 872, cols 1542–1548, 3 May 1974, esp at cols 1543–1544 (story of ‘Robert’: ‘When he was a young man he was convicted of housebreaking and sent to prison, although he was a first offender. After his release he got a job as a shop assistant. He worked hard at his job and, at night schools, got his O and A levels and, eventually, a university degree. He married a girl who had no knowledge of the conviction and they had three children’. Sadly, ‘Robert’ then missed out on a university lectureship in the Commonwealth because his potential employer made enquiries about his criminal record to the British High Commission. (His story was lifted almost verbatim, albeit without acknowledgment, from the report of the Gardiner Committee (above n 37, p 2).)), also 1547 (‘I take the view that truth is not any more paramount than any other principle of civilised conduct in a civilised society’); Hansard HL Deb, vol 353, cols 873–933, 15 July 1974, esp at cols 877–880 (‘There are many occasions on which no Christian would dream of telling the truth’), 884, 891–892, 895–896, 900–902, 908 (‘the Bill represents an excursion into that higher law, a law in which we recognise that reality is richer than thought and that there are many matters which belong to grace’), 913–914, 916–917, 921 (‘The phrase “licensed perjury” has been used. That is not just a term of rhetoric; that is precisely the principle that the Bill enshrines’), 922–923; Hansard HL Deb, vol 353, cols 1330–1408, 19 July 1974, esp at cols 1340, 1341–1342; Hansard HL Deb, vol 353, cols 1806–1852, 24 July 1974.

54. Holt, p 271. Already Sheppard devoted a mere two lines to the issue of veritas in his 1662 treatise ( Sheppard, W Action upon the Case for Slander (London: C Adams, J Starkey and T Basset, 1662) p 6 : ‘They [the actionable words] must be false, for if the thing spoken be true, let the words be what they will, the party that speaks them may justify them’).

55. See, eg, Cooke, G A Treatise on the Law of Defamation (London: O Richards, 1844) p 61 ; Odgers, W A Digest of the Law of Libel and Slander (London: Stevens, 1881) p 169 ; Gatley, above n 15, p 106; Carter-Ruck and Walker, above n 15, p 85, which all state the principle without any discussion, as if both its validity and rationale were self-evident. As far as historical works are concerned, it is noteworthy that Paul Mitchell's otherwise thorough opus, The Making of the Modern Law of Defamation (Oxford: Hart Publishing, 2005)), is almost silent on the issue of veritas.

56. Above n 10.

57. Above n 11.

58. Ray, above n 11; B Harnett and J Thornton ‘The truth hurts: a critique of a defense to defamation’ (1949) 35 Virginia Law Review 425. Harnett and Thornton's article is essentially a rehashed version of Ray's. This ‘revisionist’ trend in the USA can be traced back at least to Townshend, who attacked the rule – albeit without providing any substantive reasons of his own to back up his assertion that ‘[w]e do not pretend to vindicate the rule making truth a defence, either as just in its practical operation or sound in principle. Neither the justice nor expedience of this rule is universally nor even generally recognised’. Townshend is plainly wrong when he tries to argue that the veritas rule is ‘an innovation… of comparatively modern introduction’, dating its recognition to after 1706 ( Townshend, J A Treatise on the Wrongs Called Slander and Libel (New York: Baker and Voorhis, 1868) pp 255258 .

59. Franklin, above n 11 (USA); D Brennan ‘The defence of truth and defamation law reform’ (1994) 20 Monash University Law Review 151 (Australia).

60. A separate argument was in fact heard in the first half of the nineteenth century, which is that the discrepancy between the law applicable to civil and criminal libel was a ‘glaring inconsistency’ (Hansard HC Deb, vol 71, cols 868–894, 16 August 1843, at col 874). This argument is ignored here, partly because it has no merit on the substance (above, text to n 14) and partly because it does not explain why it is civil libel that should be aligned onto criminal libel rather than the reverse.

61. New South Wales Law Reform Commission Defamation (Report 11) (Sydney: NSWLRC, 1971) s 64.

62. Above, text to nn 6–7.

63. ‘Was it right that a person who had sustained the most serious injury to which he could be exposed – namely, the loss of his character – should be unable to obtain redress, because the fact which had been published, and which perhaps had occurred at an early period of life, and under circumstances which palliated its apparent enormity, could be proved to be true?’ (Mitchell, p 483).

64. ‘I think that the law is defective at present with regard to civil actions, in saying that in all cases the truth shall be a justification. I think there are many cases in which an injury is done to an individual, although the words spoken may be true, [for example] if they refer to what has happened many years ago…’ (1843 Report, p 177). His view was endorsed and taken over by the Select Committee in its final Report (ibid, p iv).

65. Below n 70.

66. Eg Hansard HC Deb, vol 71, cols 868–894, 16 August 1843, at col 879: ‘There was not a man… who thought that any slanderous paper in the country ought to be allowed to make at random assertions regarding the conduct of any person, however respectable, which might by possibility be true’.

67. Odgers, W An Outline of the Law of Libel: Six Lectures Delivered in the Middle Temple Hall during Michaelmas Term 1896 (London: Macmillan, 1897) p 96 .

68. Above n 58.

69. The words ‘muck-rake’ or ‘muck-raker’ were used in Parliament no less than 14 times during the debate around the Bill: see Hansard HL Deb, vol 338, cols 734–798, 1 February 1973, at col 747 (Viscount Colville); Hansard HL Deb, vol 353, cols 873–933, 15 July 1974, at cols 883 (Lord Gardiner), 898 (Lord Diplock); Hansard HL Deb, vol 353 cold 1330–1408, 19 July 1974, at cols 1331–1332 (Viscount Dilhorne, twice), 1334 (Lord Foot), 1339 (Viscount Dilhorne, three times), 1340 (Lord Ballantrae), 1406 (Lord Gardiner); Hansard HL Deb, vol 353, cols 806–852, 24 July 1974, at cols 1811–1813 (Lord Diplock, three times).

70. Hansard HL Deb, vol 71, cols 987–995, 22 August 1843, at 992.

71. This point is picked up in part 3 below.

72. Cobbett's Parliamentary History of England vol 29 (London: R Bagshaw, 1817) p 575 (emphasis added).

73. Starkie (2nd), pp lx–lxviii.

74. Eg in Sir Frederick Pollock's argument in the debate on the 1843 Bill (Hansard HC Deb, vol 71, cols 868–894, 16 August 1843, at 882); also Ray, above n 11, at 59.

75. I ignore here the arguments which aim to rebut the objections raised against the rule, rather than defend it for itself. The response typically brought up against the arguments surveyed immediately above is that a test of ‘public interest’ or ‘benefit’ would be too vague and thus create uncertainty in the law; see Pollock's speech in the Commons (ibid); Starkie (2nd), p liii; Faulks, s 138; also, in Australia, the fear expressed by a newspaper of ‘a perpetually varying Court of Conscience in the Jury-box’ (Mitchell, p 503).

76. Holt, p 271.

77. Starkie (2nd), p xlvii.

78. Faulks, s 138.

79. The importance of free speech (‘Congress shall make no law… abridging the freedom of speech, or of the press’) as the yardstick against which to assess the law of defamation already dominated Kent's Commentaries (J Kent Commentaries on American Law vol 2 (New York: O. Halsted, 1827) pp 14–20); and it was Franklin's main argument to oppose limitations placed on truth as a defence in the law of defamation (Franklin, above n 11).

80. Above n 21.

81. Above n 53.

82. Cooke, above n 55, pp 60–61; cf Townshend, above n 58, p 255.

83. This, however, is not required by etymology. As words, neither ‘slander’ (from ‘scandalum’, a cause of offence or stumbling) nor ‘libel’ (from ‘liber’, book) nor ‘defamation’ (above n 2) entail falsehood (Oxford English Dictionary, ‘libel’, ‘slander’, ‘scandal’). It does seem, however, to be inherent in the word ‘calumny’ (sometimes used as a synonym for ‘defamation’, see examples in Mitchell, pp 481 and 486), and of course in Blackstone's ‘false tale’.

84. Blackstone, W Commentaries on the Laws of England vol 3 (Chicago: University of Chicago Press, c 1979) pp 123and 125 (and 126 for libels) [1st edn, 1765–1769].

85. Holt, p 271. His argument, however, differed from Blackstone's and Starkie's in that Holt did not seem to admit that there was any harm suffered in the first place – whereas they would have argued that there was such a loss, but it was inflicted justifiably. This debate boils down to the question whether defamation protects reputation or reputation founded in character, ie deserved reputation (see below n 97). In M’Pherson, above n 4, Littledale J conflated the two propositions, failing to differentiate between reputation that the defendant ‘does not’ and ‘ought not’ to possess.

86. Starkie (2nd), p cxix. In the first edition of his treatise, Starkie had however rejected Blackstone's argument on the basis that he could not see how a true libel could be a criminal act towards society and not be a civil wrong against the plaintiff at the same time (overlooking the fact that the same act can at the same time constitute, without any contradiction, the breach of one duty and not of another); and preferred to say, in an argument reminiscent of equitable thinking, that the plaintiff had ‘excluded himself from the protection of the courts by his own misconduct’ (Starkie (1st), p 203). This argument can be seen resurfacing in the first edition of Pollock's treatise (Pollock, above n 5, p 223).

87. Gatley, C Law and Practice of Libel and Slander (London: Sweet & Maxwell, 1924) p 156 .

88. T Cooley A Treatise on the Law of Torts (Chicago: Callaghan, 2nd edn, 1888), cited in D Zimmerman ‘Requiem for a heavyweight: a farewell to Warren and Brandeis’ privacy tort’ (1982–83) 68 Cornell Law Review 291 at 332: ‘A dishonest man is not wronged when his good repute is destroyed by exposure’.

89. Walker, above n 8, p 794, who puts it in the most explicit fashion: ‘[b]y definition, defamation is the communication of matter which is, inter alia, false’.

90. At best, it could be argued that it renders the injury prima facie wrongful, but this would naturally be open to possible justifications. The argument fails to address the question why truth does not provide such a justification, and is therefore a petitio principii.

91. See, eg, Hansard HL Deb, vol 353, cols 873–933, 15 July 1974, at cols 878ff: Lord Gardiner mentioning the law of evidence and the Official Secrets Acts. There are many other examples of legal prohibitions upon speaking the truth.

92. On the notion of an interest and a quick overview of the structuring of the law of wrongs along the lines of protected interests in the civilian and common-law traditions, see Descheemaeker, E ‘Protecting reputation: defamation and negligence’ (2009) 29 OJLS 603 at 605–608.

93. The question whether ‘all of reputation’ can be added depends on the view taken as to the relationship between the interest-shaped wrong of defamation and the fault-shaped wrong of negligence. This question is explored in Descheemaeker, ibid, esp at 619–622. As a matter of fact, negligence has never been allowed in English law to be pressed into service to protect reputation; but other causes of action have been, in particular malicious prosecution, false imprisonment and conversion (ibid, at 618–619).

94. The distinction traditionally made between ‘reputation’ and ‘character’ is that the reputation of a person is what he is thought by others to be, whereas his character is what he really is (see, eg, VV Veeder ‘The history and theory of the law of defamation’ (part II) (1904) 4 Columbia Law Review 33 at 33). In that sense, the character of a person is unassailable by anything anyone else might say or do. Subject to this caveat, it is tempting to say – for the sake of emphasising the present point – that defamation protects character.

95. McNamara, p 1. The proposition that ‘defamation’ is identical with ‘the protection that the common law affords to the interest in reputation’ is also taken as a starting point by the American Restatement of Torts, above n 11, p 151.

96. This point was made by Lord Morris in Plato Films Ltd v Speidel [1961] AC 1105 at 1145–1146.

97. On that basis, in the debate alluded to above, at n 85, Holt was right; Blackstone and Starkie wrong: the reason why truth prevents a finding of liability is not that the injury to reputation is justified; it is that there is no injury to the – deserved – reputation in the first place.

98. Wilkinson v Downton [1897] 2 QB 57; see also Starkie (2nd), p cxxii. The words in Wilkinson were, of course, false (and known so to be); but their falsity played no role in Wright J's reasoning concluding that the plaintiff had a good cause of action.

99. The term ‘right to privacy’ is typically attributed to Warren and Brandeis’ seminal article in the USA ( Warren, S and Brandeis, L ‘the right to privacy’ (189091) 4 Harvard Law Review 193 ); but it can already be found 60 years earlier in Starkie's treatise (Starkie (2nd). p liv). Although terminology in this area is less than perfectly stable, privacy is commonly – and, to my mind, rightly – seen as one aspect of dignity (dignitas, itself one of the interests in the triad identified by Ulpian as protected by the wrong of iniuria in Roman law: below n 105). Dignitas is a difficult concept about which little can be said that would be widely accepted; but it seems safe to say that it is an umbrella for a number of sub-interests among which one could count, besides privacy, self-esteem. Saying that these are interests does not, of course, entail that they always are or even should be protected in law. The fact that criminal convictions are, in a sense, public is irrelevant: the information is private (‘personal’ might be a better term) in that, ordinarily, the claimant will have willed to exclude it from the knowledge of outsiders. Unless it can be shown that the information was so widely known already that no further injury was caused by the defendant's disclosure of it, a prima facie breach of privacy will therefore have been committed. Naturally, this is not to preclude the availability of a defence (objective justification or subjective excuse) which might render such disclosure non-wrongful.

100. Clearly, the publication of spent convictions does cause an injury to the plaintiff's reputation in the wider sense – but not to his deserved reputation, which is what the law of defamation exists to protect (above, text to n 96). An alternative reading of the Act which appears plausible at first sight is that what it does is deem the spent conviction (and, presumably, the facts that led to it) never to have occurred. On that reading, publishing the conviction would really be an infringement of a reputation which the plaintiff would, by operation of the law, be regarded as deserving. But not only is this unattractive because of the lie that it promotes; it is also untenable because the Act does not prohibit all disclosures of such facts, but only those that are malicious.

101. Above n 37.

102. Above n 6.

103. G.3.220; J.4.4 pr-1; D.47.10.1 pr-2 (Ulpian, 56 Edict).

104. P Birks ‘Harassment and hubris: the right to an equality of respect’ (1997) 32 Irish Jurist (NS) 1 at 30.

105. D.

106. Faulks, s 76. This line of argument was picked up and properly fleshed out in Australia; see, eg, NSWLRC, above n 61, s 5; Brennan, above n 59, pp 153–154 (speaking of the ‘privacy fallacy’) and 163–164; Mitchell, p 504.

107. [1930] 1 KB 467.

108. Above n 2.

109. Ibid.

110. Descheemaeker, E ‘Defamation outside reputation: proposals for the reform of English law’ (2010) 18 Tort Law Review 133 .

111. Above, text to n 12.

* I am grateful to Paul Mitchell and Lawrence McNamara for their helpful comments on an earlier version of this paper. Some frequently cited works are referred to under the following abbreviations: 1843 Report : Report from the Select Committee of the House of Lords appointed to consider the law of defamation and libel (London, 1843); Faulks: N Faulks Report of the Committee on Defamation (London: HMSO, 1975); Helmholz: R Helmholz Select Cases on Defamation to 1600 (London: Selden Society, 1985); Holt: F Holt The Law of Libel (London: J Butterworth, 2nd edn, 1816); McNamara: L McNamara Reputation and Defamation (Oxford: Oxford University Press, 2007); Mitchell: P Mitchell ‘The foundations of Australian defamation law’ (2006) 28 Sydney Law Review 477; Starkie (1st): T Starkie A Treatise on the Law of Slander, Libel, Scandalum Magnatum and False Rumours (London: W Clarke, 1813); Starkie (2nd): T Starkie A Treatise on the Law of Slander and Libel, and Incidentally of Malicious Prosecutions vol 1 (London: J and W T Clarke, 2nd edn ‘with very considerable additions’, 1830).

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Winner of the SLS Annual Conference Best Paper Prize 2010: ‘Veritas non est defamatio’? Truth as a defence in the law of defamation

  • Eric Descheemaeker (a1)


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