A simple guide to defamation – what is it and how to bring and protect against a claim

Guide
Published: 9th March 2022
Area: Litigation & Dispute Resolution

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The law has recognised for well over 100 years that individuals or businesses have a right to have the estimation in which they stand in the opinion of others, unaffected by false statements.  In simple terms, if someone says something untrue or damaging about you then you should have the right to stop them and to undo the damage.

How can a person be defamed? 

There are two ways:

  • Libel which involves words that are printed.  This includes messages written on social media, email,    text messages etc, and
  • Slander where words are spoken about someone.

Although there are some special rules for slander, both are equally serious.

Who can sue for defamation?

Individuals can sue for themselves; or businesses be it companies, partnerships etc subject to certain limitations.

Who cannot sue for defamation? 

Government bodies, political parties or people who have passed away.  The fact that a political party cannot sue does not mean that an individual politician could not bring a claim however, and indeed all too often it is politics that can be the basis of a claim.

What makes someone liable for defamation? 

Anyone who knowingly takes part in the publication of a defamatory statement can be liable for its publication.  Under section 10 of the Defamation Act, that will be the author, the editor of the publisher of the statement – unless that is not reasonably practicable.

There is a particular defence called innocent dissemination.  It protects for example a person working on the printing of a newspaper; or people who might operate an internet page where someone publishes a statement.

What needs to be established to bring a defamation claim? 

There are three key points:

  1. That someone has published a statement to a third party. That means they cannot sue someone who has simply said something only unless there is another party who will have heard or read that statement.
  2. Secondly, it has to be a statement that defames the person wanting to bring the claim.
  3. After the Defamation Act 2013 it now must have caused or be likely to cause serious harm to the reputation of the person wanting to bring the claim. If it a business wanting to bring a claim this last element will require proving some financial loss.

There are special rules that apply to slander.

What does publication mean? 

‘Publication’ has a special meaning and it is not enough that someone simply wrote something or said something; it must be communicated to another person.

Is publication to just one other person enough to lead to a claim? 

Yes it can do, but if it is only one person, proving that enough harm has been done to a reputation becomes more difficult.  Of course the more serious a statement the easier it is to establish that; or the more relevant the individual; but if the scope of publication is very low there is a risk of a claim getting struck out.  It is necessary to understand the scope of publication very carefully.

How is defamation proved if publication does not use a name? 

The test is that a reasonable person who knew the person wanting to bring a claim, would reasonably understand the statement as referring to them.  A claimant need not be referred to by name; or even identifiable by the world in general; that makes sense because if someone does not really know them can a publication really affect their opinion?  Obviously not.  Obviously however the more prominent an individual is, say a celebrity or a politician, the larger the group of people will be able to understand that something refers to them.

Can publication refer to other people as well as the claimant? 

It is still possible bring a claim.  The fact that one person might understand it to refer to someone different does not stop a claim being brought but again be very careful.  In that situation the context of statement can be all the more important.

When is something defamatory or not? 

The answer to this is what do the words used actually mean?  Ultimately the court will determine what words do mean but there are two key things to consider.  What is the natural and ordinary meaning of the words?  If that comes over as something that would make someone think less of the subject then that natural and ordinary meaning could be defamatory.

What if the meaning is not obvious? 

That does not mean that a publication is not going to have a defamatory meaning.  Everyone knows how innuendo or suggestion can be used and if a person would still understand it to be defamatory, then an innuendo meaning can be found.

How can it be established how serious a statement is; or what is possible to publish? 

That will change from case to case but the courts look at how serious a statement is, using three particular levels; the most serious is imputation of guilt or saying someone is guilty of something; the second is that there are reasonable grounds to suspect someone might be guilty; the third and least serious is that there are grounds to investigate someone being guilty.  The more you tend towards the last serious meaning; often the less likely it is that a statement might be defamatory.  Remember though, saying that there are grounds to investigate can still easily be defamatory.

What is a defamatory statement? 

It is a statement which would seriously affect in a negative way the attitude of someone reading or hearing that statement towards the person or business that it is about; or it has a tendency to cause them to do that.  Again that is quite wide and can encompass a huge range of different statements but if it is not sufficiently serious a claim can again be struck out.

What was the defamation law change in 2013?

The changes were significant and section 1 of the Defamation Act requires a claimant to show that a publication of a defamatory statement has caused or is likely to cause serious harm to their reputation. What serious harm means will always potentially vary but assessing harm is now one of the most important things a lawyer must do.

What is different about defamation law affecting companies? 

Where a body ‘trades for profit’ as the Defamation Act defines it the test is whether the publication has caused or is likely to cause the body serious financial loss.  Again what is a serious financial loss will vary from business to business; what is a serious financial loss for an SME would be of little consequence to a large plc potentially.  Again the devil is in the detail and a business needs to consider this very carefully.

Are there any defences to a defamatory claim? 

Yes there are.  Assuming that the statement has been established to have been published; refers to the claimant; had a defamatory meaning and all the other elements are in play, there are still some defences.

The first and most important: truth. If what the statement says is substantially true then that can protect the defamatory publication.  Rarely however is a claim so simple.

There is a defence of honest opinion.  To succeed it must be established that the statement is actually an opinion; why that opinion is formed and crucially it is an opinion that an honest person could have held at the time on the basis of the facts; and where there is not any element of malice in regard to that opinion.

There are some defences even if a statement is defamatory and cannot be protected as either truthful or an honest opinion.  One of those is the public interest defence.  This is where a statement is on a matter genuinely of public interest – not simply something which is interesting to the public which is an important distinction.  Most importantly the defendant must have reasonably believed the publication was in the public interest.  This is a very sensitive and complex defence and it will apply sparingly.

Is there ever a time where someone can say whatever they like and can be protected? 

Occasionally there is something called a privilege defence. Privilege means someone can speak freely without being able to be sued for defamation; these fall into two main categories:

  • Absolute privilege - something enjoyed by someone giving evidence to a judge in a court case; or a member of Parliament speaking in the House of Commons.
  • Qualified privilege – the more commonly used. Importantly however even privilege defences can be defeated by malice.  Qualified privilege effectively means that someone has a social or legal or moral or other duty to make a publication even though it might be defamatory.

How long have you got to bring a claim?

This area of law is very different to others; you only have one year from the date of the first publication by the person you want to sue.

What could be done to put things right if someone has been defamed? 

Here there is a difference between what a court can do and what lawyers can potentially achieve; a court can award damages i.e. a payment of money to the defamed party to compensate for the harm done; and this can include what is called aggregated or special damages in particular circumstances.  A court can require publication of the summary of the judgement to potentially undo some of the damage of the publication; can require publications to be taken down pages for example; and in the most serious cases can grant an injunction stopping further publication where there is a danger of that happening.

Can a court grant an apology? 

This is one thing that the court cannot do albeit there can be what are called offers of amends.  Lawyers acting for you can however potentially secure an apology which often means as much to a claimant as a court judgment.

Is it possible to stop something defamatory being published?

Unfortunately, the answer is usually no.  Ultimately what is called an interim injunction to stop someone publishing will only be awarded in the most exceptional cases.  That does not mean that a potentially claimant should give up and good lawyers can help manage this situation and it may be that someone has that exceptional case.  More often than not injunctions are obtained by the use of other elements of the law such as what is called malicious falsehood; or data processing breaches for example.

Defamation is a very complex area of law.  With the prevalence of social media however and the freedom and impunity with which certain people will feel that they can say what they like about businesses, people and can spread publications far and wide across the globe causing real damage in minutes, action is required.

Of course the best circumstances are for the person publishing to be very careful with what they say; or at the very least take some advice from a lawyer before they publish something that might be controversial or potentially defamatory.

Importantly there are often better and more appropriate options than heading to court, but ultimately however there are times when only court action is the right option.

If thinking of bringing a claim for defamation; or are being threatened with a claim for defamation however it is important to seek specialist advice.  Many solicitors will deal with litigation; few deal regularly with such a specialised area of law where if someone makes a mistake huge costs can be accrued very, very quickly and a reputation actually made worse, not better by litigation.

If you have any concerns about what is being said about you; your business; or what you wish to say, you should take advice as soon as possible.  Our expertise and experience means we can not only advise you as to how to deal with the matter legally but also how to manage a reputation through this and avoid some of the common pitfalls.

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Daniel is a highly regarded experienced specialist commercial litigator and defamation expert.

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