Fair and reasonable publication on a matter of public interest.
26.— (1) It shall be a defence (to be known, and in this section referred to, as the “ defence of fair and reasonable publication ”) to a defamation action for the defendant to prove that—
(a) the statement in respect of which the action was brought was published—
(i) in good faith, and
(ii) in the course of, or for the purpose of, the discussion of a subject of public interest, the discussion of which was for the public benefit,
(b) in all of the circumstances of the case, the manner and extent of publication of the statement did not exceed that which was reasonably sufficient, and
(c) in all of the circumstances of the case, it was fair and reasonable to publish the statement.
(2) For the purposes of this section, the court shall, in determining whether it was fair and reasonable to publish the statement concerned, take into account such matters as the court considers relevant including any or all of the following:
(a) the extent to which the statement concerned refers to the performance by the person of his or her public functions;
(b) the seriousness of any allegations made in the statement;
(c) the context and content (including the language used) of the statement;
(d) the extent to which the statement drew a distinction between suspicions, allegations and facts;
(e) the extent to which there were exceptional circumstances that necessitated the publication of the statement on the date of publication;
(f) in the case of a statement published in a periodical by a person who, at the time of publication, was a member of the Press Council, the extent to which the person adhered to the code of standards of the Press Council and abided by determinations of the Press Ombudsman and determinations of the Press Council;
(g) in the case of a statement published in a periodical by a person who, at the time of publication, was not a member of the Press Council, the extent to which the publisher of the periodical adhered to standards equivalent to the standards specified in paragraph (f);
(h) the extent to which the plaintiff’s version of events was represented in the publication concerned and given the same or similar prominence as was given to the statement concerned;
(i) if the plaintiff’s version of events was not so represented, the extent to which a reasonable attempt was made by the publisher to obtain and publish a response from that person; and
(j) the attempts made, and the means used, by the defendant to verify the assertions and allegations concerning the plaintiff in the statement.
(3) The failure or refusal of a plaintiff to respond to attempts by or on behalf of the defendant, to elicit the plaintiff’s version of events, shall not—
(a) constitute or imply consent to the publication of the statement, or
(b) entitle the court to draw any inference therefrom.
(4) In this section—
“ court” means, in relation to a defamation action brought in the High Court, the jury, if the High Court is sitting with a jury;
“ defamation action ” does not include an application for a declaratory order.