Libel is one form of defamation (the other being slander) and covers defamatory statements captured in some kind of permanent format (e.g., in writing or print, or on videotape or CD).
As discussed in the defamation overview, there are a few basic questions you need to address if you’re considering a claim for libel, including:
- Is the statement defamatory?
- Did the defendant “publish” the statement to a third person?
- Does the defendant have a valid defence?
Let’s take a look at each one in turn.
(1) Is the statement defamatory?
A defamatory statement is one which adversely affects the claimant’s reputation.
If the defamatory meaning is not obvious on the face of the statement, the claimant must produce extrinsic evidence and explain why it adversely affects his/her reputation.
Only statements of fact are actionable as libel. Mere insults, name-calling, or “vulgar abuse” are not. To be actionable, the statement must actually injure the claimant’s reputation.
(2) Did the defendant “publish” the statement to a third person?
Publication of libellous content may occur by any number of means. Newspapers and broadcast media may of course be used. But the courts have also held one may publish by such diverse methods as depicting a claimant in a waxworks model or performing a play that includes defamatory statements.
“Primary publishers” ( e.g., newspapers, TV stations, etc.) are liable to the same extent as the original authors or speakers of the libellous content.
- Note: any repetition of libel, even if oral, is also libel; whereas any written repetition of slander is not slander, but libel.
Even “re-publishers” of libellous content, such as those who repeat it but state the source of the material and make clear they do not believe the statement may be held liable.
“Secondary publishers”, such as newsagents, are only liable if they know or should know of the defamatory content.
Note, however, that sometimes the courts will find that a person publishing a statement should not bear responsibility if it is libellous. This has happened in some cases involving internet service providers, who have simply hosted a website or message board where someone else posted a defamatory statement — although there have also been some cases where the circumstances were such that the court did hold an internet service provider responsible (for instance, where the service provider failed to take the statements down after being told of them).
As part of the publication requirement, the claimant must show that the defamatory statement actually identifies him/her. An indirect reference to the claimant may be sufficient (for instance, in the case of a celebrity, a nickname that is widely known). On the other hand, a general reference to a large group that happens to include the claimant may not be enough to give the claimant a valid basis for asserting that he/she is a victim of libel.
(3) Does the defendant have a valid defence?
When faced with a libel claim, a defendant may defend on the basis that the statement was:
- fair comment; and/or
To establish the statement was justified, the defendant must show that it was true or at least substantially true. (NB. When a claimant brings an action for libel, the court begins with the presumption that the claimant had a good reputation and that the statement injuring his/her reputation is false, thus putting the onus on the defendant to prove it is true.)
Another defence is known as fair comment. This defence is used where, for example, a newspaper or broadcast runs an opinion piece on a matter of public interest. A person is allowed to comment on a matter of public interest, even if it reflects poorly on the claimant. There is, however, a caveat. To create a valid defence, the “fair comment” must be an honestly held opinion, and not simply a statement made out of malice in order to make the claimant look bad. Thus, a well-reasoned opinion article in a newspaper, in which the author concludes that a politician has been dishonest or incompetent in some respect, is unlikely to give the politician grounds for a libel claim.
Turning to privilege, this defence comes in two forms. Some statements are absolutely privileged, so that they are not actionable even if they would otherwise be defamatory. Statements that people make during judicial or parliamentary proceedings are a couple of examples where absolute privilege would attach. A written summary or broadcast of such proceedings will be absolutely privileged and therefore cannot form the basis for a libel claim — even if the person who makes the statement doe so maliciously.
Qualified privilege applies to statements that people make out of some legal, moral or social duty. An example might be a written witness statement provided to the police. The subject of the investigation cannot claim that the witness has libelled him/her unless the witness gave the statement out of malice — looking to get the individual into trouble and with a disregard for the truth of the matter.
(4) Time limit for bringing a claim
Normally, the limitation period for personal injury claims is three years from the date the injury occurred or — for injuries that take the form of diseases that only become apparent gradually over time — the date that the injured person first became aware of the injury. The limitation period for libel (indeed, all defamation claims) is much shorter, however — only one year from the date of publication.
(5) Jury trial
Either of the parties to a libel action can, if the matter goes to trial, require that it be heard by a jury. That is not generally the case for other types of civil claims. The matter can, however, be decided by the judge alone prior to trial — that would happen if, say, the judge concludes that one of the parties has no reasonable prospect of success.
(6) Remedies: damages and injunctions
If a libel claimant takes his claim to trial and wins, he can recover damages and costs. Typically, the court will require the losing party to pay some or all of the winner’s costs, just like in other types of civil proceedings.
Damages may include what are known as “general damages” (to compensate for any non-monetary harm suffered, such as for personal pain and suffering), “special damages” (to compensate the claimant for quantifiable financial losses, such as loss of business) and can also include aggravated and/or exemplary damages (which serve more of a punitive function, where the defendant’s behaviour has been unreasonable, reckless, or otherwise unworthy).
In some cases, a claimant may only get nominal damages (say, 1). This might happen where the defendant has claimed that the statement giving rise to the claim was true, and although the defence failed to convince the jury completely, the jury thought the statement to be nearly true.
A claimant may also apply for an injunction to stop the defendant from publishing libellous material. Obviously this has serious civil liberties implications for free expression. In recent years judges have been heavily criticised for granting “super-injunctions” to the rich and powerful, including people from abroad. This phenomenon has drawn stinging condemnation from the United Nations Committee on Human Rights, which in 2008 denounced English defamation law for “discouraging critical media reports on matters of serious public interest, adversely affecting the ability of scholars and journalists to publish their work, and encouraging libel tourism.”
Still, there may be instances where an injunction is an appropriate remedy. In the words of Liberty, for example: “where the words complained of are unarguably defamatory, there are no grounds for concluding that the statement may be true; there is no other defence which may succeed; and there is evidence that the defendant will repeat the defamatory allegations.” Breach of an injunction is punishable by imprisonment.
(7) Making a claim
If you’re thinking about making a claim for libel, you need to consider your position very carefully. Libel claims can and do fail, which can be very expensive.
If you believe you have a libel claim, you should only proceed after you obtain good legal advice. It is a somewhat unusual specialty, and the majority of solicitors do not have experience in libel.