Truth and Truthfulness in the Law of Defamation

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