“English law does not permit a claimant to recover damages in respect of an injury to a character which he/she does not possess, or ought not to possess.  For this reason a successful plea of justification is an absolute defence to a claim in libel because it shows, as a matter of objective fact, that a claimant is not entitled to the unblemished reputation which he/she claims to have been damaged by the publication of which complaint is made.”

— Brooke LJ in Chase v Newsgroup Newspapers [2003] EMLR 218 (CA) at [33].

The basics

What is the test?

To displace liability for defamation, a defendant can establish the defence of ‘truth’—formerly known as ‘justification’—by proving that either:

• the defamatory meaning complained of was materially true, or
• the publication sued upon was, as a whole, materially true with respect to the allegations about the plaintiff.

The defence is assessed on an objective basis.  It does not matter whether the defendant believed an allegation to be true; only whether it is true in fact or substance.

When a Court is dealing with the truth or falsity of an allegation on which a claim is based, a fundamental legal aspect is that the defendant carries the burden of proof to establish the truth of the allegation.  That is, the law gives the plaintiff the presumption of falsity, assuming as a matter of law that he or she is of good repute and character unless the defendant proves otherwise.

In some jurisdictions—most notably in the United States—the plaintiff must establish the publication’s falsity as an element of their claim.  Not so in New Zealand, nor indeed in comparative Common Law jurisdictions, such as Australia, Canada, England and Ireland.

Just how prevalent is the defence of truth?

In daily life, very much so.  A quick browse of any given news website will demonstrate plenty of articles containing statements with a defamatory tendency: that Sally stole a car; that Louis sold drugs with his infant child present; or that both of them conspired to run a Ponzi scheme.

But although these articles may contain statements with a defamatory tendency, the publisher will deem them safe to publish because if sued, they have a basis to prove them to be true in Court, whether with evidence such as Court records, Police records, or convincing witnesses.  (All things being equal, the publisher might also have other defences in mind, such as honest opinion, privilege or RCPI).

Equally, the subject of the allegation–our Sally or Louis—is less likely to complain if it is obvious that what was published was demonstrably true.

It follows that the vast majority of statements with a defamatory tendency are neither sued upon nor even formally complained about.

What considerations should underlie a defence of truth in Court?

Where a claim actually makes it to Court, normally it is because the plaintiff will have assessed that a defence of truth will face major limitations.  Only a backasswards plaintiff takes court action over demonstrably true allegations.

One of the ‘stings in the tail’ of the defence of truth, is that it must be raised in response to the defamatory meaning alleged by the plaintiff.  Quite often a publisher will publish what they consider to be true, but the plaintiff is able to exploit ambiguity in the language used, or omissions in the content, to forge a defamatory meaning for which the defendant has no proof.  Quite often this leads to the situation where the defence of truth cannot even be raised.  The position is different in England, where a defendant can haggle over the meaning of a statement, and then seek to establish the truth of a less injurious meaning.  And in Australia, in some States a defendant can seek to establish an alternative variant of the meaning alleged by the plaintiff.  But in New Zealand, the only relevant enquiry for the defence of truth will be the meaning alleged by the plaintiff, who has the sole power to ‘set the battleground’ for the proceeding.

Another difficulty often encountered is the requirement for the defence to be established by admissible evidence.  For example, there might be a particular source who was willing to provide information when the statement was published but, by the time a trial is held, that person might no longer be around to give evidence, or might no longer hold relevant documents.  Similarly, it is risky to predicate a defence of truth solely upon the anticipated credibility of a particular witness.  If their credibility is shredded in cross-examination, a defence of truth can go up in smoke.

A further impediment to the defence of truth is the operation of the ‘repetition rule’.  It will be recalled from our discussion of publication, that the liability of a person who repeats a rumour or allegation is no different to the person who first made the statement.  So, if a defendant has repeated an allegation made originally by a third party, the defence of truth will not be established by proving that another person has made the allegation; the defendant will have to establish the defence of their own accord, which can be difficult where, as is quite often the case, the defendant does not have access to the information that was available to the source of the allegation.

Masterclass

Legal practice tips

For publishers:

• When preparing content for which legal action is within the realm, keep a ‘verification file’ – as we call it in the business.  This file should record the available evidence that supports any potentially defamatory allegation or implication that one intends to publish.  Depending on the type of publication, this file might include documents such as company extracts from the Companies Office, Court decisions, Police records, or affidavits or signed statements from potential witnesses.  For one thing, a good verification file can help expose gaps in research.  For another, it might serve to strengthen one’s confidence to make a particular allegation even stronger than initially envisaged.
• “If in doubt, leave it out”.
• Don’t speculate as to what other people know or think.  The defence of truth becomes very difficult when one tries to establish another person’s subjective state of mind:  “Police Chief Sally knew that Constable Louis was lying about the altercation, yet did nothing about it”.  It is much safer to frame such allegations in objective, opinion-oriented terms:  “Given that the Police obtained the CCTV footage of the incident, it is difficult to see how Police Chief Sally could not have known Constable Louis was lying about the altercation.”
• Know your target.  Is the subject of your story litigious?  Do they have significant resources – at least compared to you?  Some people will sue even if they know something is true with a hope that they can grind down the publisher with legal costs and extract an apology or retraction – ‘lawfare’.  Sometimes, a journalist’s vainglorious trophy might not be worth years of litigation.

For litigants:

• Where a defence of truth is raised in respect of a tier-two meaning—i.e. reasonable grounds to suspect guilt—the facts on which the defendant relies must establish those grounds for reasonable suspicion on an objective basis.  That is, it is not enough that the defendant themselves believed there was reasonable grounds to suspect guilt; those reasonable grounds must be established to the satisfaction of the Court.
• A failed defence of truth can often sound in an award of aggravated damages.  This is because the plaintiff will effectively have been ‘defamed’ again through the course of the defendant’s resistance of the claim at trial, which compounds the original injury to their reputation and feelings.  That said, provided a defence of truth is responsibly run—perhaps where truth is raised only for certain meanings rather than a scattergun approach, and where cross-examination is not conducted in an overblown or searching manner—then in the event the defence fails, the risk of aggravated damages is somewhat diminished.
• Section 38 of the Defamation Act is headed “Particulars in defence of truth“.  But as the Supreme Court has made clear, the heading “misstates the purpose and the effect of the section”, which actually concerns the now-antiquated “rolled-up plea” of honest opinion.
• Section 8(3)(b) of the Defamation Act is concerned with whether the publication sued upon was, as a whole, materially true with respect to the allegations about the plaintiff.  Many judges have purported to reconcile the effect of this section.  But on inspection most tend to just recite the section as though it’s crystal-clear, and a few might layer some reference to how the section fixes the pick-and-choose doctrine that prevailed before the Act.  For our part, we think the effect of the section is really akin to the Australian statutory defence of contextual truth.  The point is that, irrespective of the plaintiff’s meanings, when the Court takes into consideration the impact of the statement as a whole, in particular those parts about which the plaintiff does not complain but which the defendant is entitled to prove to be true, the statement ultimately has no defamatory impact.  But it would seem the only means to give effect to this is to permit the defendant to raise the other aspects of the statement as alternative meanings, otherwise there is no basis for what the Court is being asked to determine is true.

Recommended reading

• TVNZ v Haines CA71/04, 13 September 2005, [2006] 2 NZLR 433 (Court of Appeal)

For the leading authority on the impermissibility of a defendant to raise alternative meanings and attempt to prove those meanings true: see paragraphs [23]–[70].

• APN v Simunovich [2009] NZSC 93, [2010] 1 NZLR 315 (Supreme Court)

For the evidential foundation required to support a defence of truth, including upon the different tiers of meaning: see paragraphs [15]–[17] and [20]–[35].

• Stringer v Craig [2020] NZHC 1021 (High Court)

For a substantive determination of the defence of truth where it largely prevailed: see paragraphs [92]–[94] and [98] (for the meanings of which truth was at issue), and paragraphs [114]–[125] (for the determinations of truth).

• Craig v MacGregor [2019] NZHC 2247 (High Court)

For a substantive determination of the defence of truth across a claim and counter-claim, where it prevailed in some respects and failed in others: in respect of the claim, see paragraphs [166]–[172] (for the meanings of which truth was at issue), and paragraphs [173]–[184] (for the determinations of truth); and in respect of the counterclaim, see paragraphs [199]–[208] (for the meanings of which truth was at issue), and paragraphs [209]–[212] (for the determinations of truth).  The decision also refers to other causes of action in the counterclaim with largely similar findings.