Truth and Truthfulness in the Law of Defamation

Anne-Sophie Hulin, Robert Leckey and Lionel Smith (eds), Les apparences en droit civil (Montreal 2015), 13-48

Edinburgh School of Law Research Paper No. 2014/26

21 Pages Posted: 10 May 2014 Last revised: 2 Jul 2016

See all articles by Eric Descheemaeker

Eric Descheemaeker

University of Melbourne - Law School

Date Written: May 6, 2014

Abstract

This paper provides a comparative overview of two related, but analytically distinct, issues in the law of defamation. The first is whether the true character of a defamatory statement relieves the defendant from liability. On this issue, the civilian and common-law traditions have historically settled on two markedly different stances, the latter accepting the sufficiency of truth simpliciter while the former never did. Some of the reasons for this distinction are explored. Different is the issue of truthfulness, in the sense of belief in truth. Does it, and should it matter, that a defendant believed that what they said was true albeit (prima facie) defamatory? Should we distinguish on the basis of the ‘quality’ of the belief? This paper argues that reasonable truthfulness ought to be recognised as a defence in the law of defamation. De lege lata, the law has never come up with such a general principle, but observation suggests that it has in fact been beating about the bush for a long time, using other analytical tools. Besides, a number of recent developments internationally can be understood as attempts to get closer to the above position.

Keywords: defamation, defences, truth, belief in truth, iniuria, malice, animus iniuriandi, qualified privilege, responsible publication, publication on matter of public interest, negligence

Suggested Citation

Descheemaeker, Eric, Truth and Truthfulness in the Law of Defamation (May 6, 2014). Anne-Sophie Hulin, Robert Leckey and Lionel Smith (eds), Les apparences en droit civil (Montreal 2015), 13-48, Edinburgh School of Law Research Paper No. 2014/26, Available at SSRN: https://ssrn.com/abstract=2434603 or http://dx.doi.org/10.2139/ssrn.2434603

Eric Descheemaeker (Contact Author)

University of Melbourne - Law School ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia

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