What do I need to know about defamation?

What do I need to know about defamation?

Where a person makes a defamatory statement that damages your reputation, you may be able to sue them for compensation or prevent them repeating it.

While the classic example of a defamation claimant is the celebrity who believes that a newspaper has published an unflattering untruth about her, defamation also comes up in more mundane circumstances.

For example, a businessman might claim that he has been defamed by a rival who sends an email containing false statements that damage his professional reputation. Or someone might object to falsehoods published on a social networking website that reflect adversely on their integrity or honesty.

If you think you have a claim for defamation, there are a few basic questions you need to consider, including:

  • Is the statement defamatory?
  • Did the defendant “publish” the statement to a third person?
  • Does the defendant have a valid defence?

(1) Is the statement defamatory?

Lord Atkin said: “A defamatory statement is one which injures the reputation of another by exposing him to hatred, contempt, or ridicule, or which tends to lower him in the esteem of right-thinking members of society.”

This definition covers a lot of ground, but usually a person making a defamation claim is primarily concerned with the injury to his reputation. Mere insults or “vulgar abuse” are not defamatory. To be actionable, the statement must actually injure the claimant’s reputation.

(2) Did the defendant publish the statement to a third person?

The word “publication” sounds very grand, but for the purposes of defamation it is relatively simple for a claimant to establish that the defendant has “published” a statement.

A person can “publish” a statement simply by saying it, or otherwise making it in some temporary way. If a person makes a defamatory statement this way, it is known as slander .

A defamatory statement in a more permanent form, in writing say, for example in a newspaper or on the internet, or in a letter or an email, is known as libel .

Note, however, that sometimes the courts will find that a person publishing a statement should not bear responsibility if it is defamatory. 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 has been defamed.

In general, the courts have given broad meaning to the word “publication.” In one well-known case, the court held that a waxwork depicting the claimant in a public place amounted to publication.

(3) Does the defendant have a valid defence?

When faced with a defamation claim, a defendant may defend on the basis that the statement was:

  • justified;
  • fair comment; and/or
  • privileged.

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 defamation, 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.)

Fair Comment is a defence that, in effect, protects the right of free expression. It means that if the statement in question is the defendant’s honestly held opinion on a matter of public interest, and if the defendant did not make the statement maliciously, then it is not actionable. For instance, 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 defamation claim.

Privilege is a defence that 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 proceedings, as well as statements that people make in Parliamentary proceedings, are absolutely privileged. The privilege applies even if the person making the statement does so maliciously.

Qualified privilege applies to statements that people make out of some legal, moral or social duty. Qualified privilege does not, however, apply if the person makes the statement out of malice. For example, a person reporting someone to the police will not be liable for defamation unless he/she does so in bad faith and primarily to injure someone’s reputation or otherwise harass or annoy them.

(4) Time limit for bringing a claim

The limitation period for defamation is shorter than for other civil claims. 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 defamation claims is much shorter, however – only one year from the date of publication.

(5) Jury trial

Either of the parties to a defamation 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 defamation 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 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 defamatory material. Obviously this has serious civil liberties implications for free expression and so on. In recent years, judges have been heavily criticised for the number of super-injunctions granted 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 defamation, you need to consider your position very carefully. Defamation claims can and do fail, and a claim that fails at trial can be very expensive for the claimant.

If you believe you have a defamation claim, you should only proceed after getting initial advice from a solicitor with experience in the area. It is a somewhat unusual specialty, and the majority of solicitors do not have experience of defamation work.

You can find a solicitor who specialises in defamation for free via our Solicitor Directory where you can search for a solicitor near you, anywhere in the UK.

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