private law, since the cases raise important issues of freedom of the press and, indeed, human rights (Tolstoy Miloslavsky v UK (1995) 20 EHRR 442). The House of Lords has gone some way in recognising this constitutional and human rights aspect (Derbyshire CC v Times Newspapers [1993] AC 534), but the tort can still be used to stifle investigative reporting (see, for example, Pilger, ‘Letter’ (1991) The Guardian, 9 July). Recent statutory intervention has made life a little easier for the publisher, as opposed to the author, of a defamatory statement (Defamation Act 1996). However, the strictness of the liability results in a situation where injury to reputation once resulted in damages that were out of all proportion to those obtained in personal injury cases (cf Sutcliffe v Pressdram Ltd [1991] 1 QB 153). As the MGN case shows, Parliament and the Court of Appeal have now gone some way to remedying this situation. 2 There are three central defences to defamation: justification, fair comment and privilege. If the author or publisher of a defamatory statement can establish that it is true, then the claimant’s action will fail. The facts said to be true must, however, be correct (cf Defamation Act 1952, s 5). Fair comment is more difficult, because it attaches only to facts and not to the claimant himself; that is to say, it attaches to the objective conduct of the claimant. Thus, to say that C is an ‘incompetent nitwit’ is not fair comment; but to say that C’s textbook or performance in a play, or indeed conduct at a public function, gives the impression of being written or performed by an ‘incompetent nitwit’ may be fair comment. The comment must, in other words, attach to facts (conduct or whatever) in the public realm and these facts must be correct (cf Defamation Act 1952, s 6). Fair comment can be defeated by malice, but the burden of proving this is on the claimant. 3 Privilege is of two types: absolute privilege is a complete defence, while qualified privilege will fail as a defence if the plaintiff can prove malice. The key concept in this defence is ‘interest’. A person may be protected if he or she communicates a defamatory statement to a person who has an interest in receiving it. Thus, one director of a company might have an interest in receiving information, even if defamatory, about another director or employee (Watt v Longsdon [1930] 1 KB 130). More generally, it would be tempting to think that any comment in the public interest is covered by privilege; but this would be wrong. The defence is probably wider than it once was, but the idea of a ‘duty’ to publish in the ‘public interest’ is still very narrowly construed (Reynolds v Times Newspapers Ltd [1998] 3 WLR 862). Indeed, it has to be said that the courts rarely give preference to the public interest over the commercial interest (Camelot Group plc v Centaur Communications Ltd [1999] QB 124), although the House of Lords may take the opportunity to adjust the balance in the light of the Human Rights Act 1998 ([1999] 1 WLR 478). The fair and accurate reporting of certain
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