What is defamation?
A defamatory statement is an untrue statement published to a third party that affects the reputation of a person, company or firm. There are two types of defamatory statements: libel and slander.
Libel occurs when a defamatory statement is written or in any similarly permanent form. Damages can be awarded for libel, unless the defamatory statement in question is protected by a defence in libel law (eg, truth, honest opinion, in the public interest, covered by privilege or published with consent).
Slander occurs when a defamatory statement is spoken or in any transient form. The two exceptions to this are defamatory statements broadcast on radio or television or said during a public performance of a play: these are classed as libel under the Broadcasting Act 1990 and Theatres Act 1968. Damages are also available if slander is proven and no defence is available.
Under the Defamation Act 2013, to succeed in a defamation claim the statement must be made against an identifiable claimant and the statement must have caused or would be likely to cause serious harm to the claimant’s reputation. Legal entities bringing an action for defamation must prove that the statement caused them serious financial loss. In slander cases, apart from some limited exceptions, the claimant must also prove that they suffered special damage (ie, that they actually suffered directly due to the slander, eg through lost wages, lost earning capacity or loss of business opportunities).
What definitions of a defamatory statement do judges use?
When judges explain the concept of a defamatory statement to juries, they say that it ‘tends to’:
- expose the person to hatred, ridicule or contempt;
- cause the person to be shunned or avoided;
- lower the person in the estimation of right-thinking members of society generally;
- disparage the person in his/her business, trade, office or profession.
The phrase ‘tends to’ means the claimant does not have to prove the statement actually did expose them to ridicule or contempt or disparage them in their profession. It is enough for the words used in the statement to ‘tend to’ have this effect when used about an individual (or company or firm).
What counted as libel 20 years ago may no longer have the same negative effect, so judges refer juries to the standard of intelligence and judgment of the hypothetical ‘reasonable man’ as a measuring stick. The jury must therefore ask itself whether a reasonable man or woman would find the statement defamatory under the circumstances in which it was published.
When assessing whether a statement lowered the person ‘in the estimation of right-thinking members of society generally’, it is not enough for the claimant in a libel case to show that the words published lowered him/her in the estimation of just one specific community or group of people, although this may be sufficient where a business, trade, office or profession is defamed.
Does a defamation case have a judge and a jury?
Usually a defamation case will be tried by a jury. The exceptions are when both sides agree for the case to be heard by a judge without a jury or when the judge decides that a jury will complicate matters. This could be, for instance, because explaining the complexities of certain defamation cases to a jury of laypeople could be too time-consuming.
In a libel case with a jury, the judge will rule whether the statement in question is capable of bearing a defamatory meaning. If s/he does so, the jury will then be called upon to decide whether or not the statement was in fact defamatory. The jury takes into account the circumstances in which the statement was made, eg, examining the meaning of the exact words in the context they were originally used.
If the jury finds the statement was defamatory it will then decide how much the publisher will pay in damages to the individual, company or organisation about whom the statement was made.
Is there any statement that is always classed as libel?
It is almost always defamatory to say that an individual is a liar, or a cheat, or is insolvent or in financial difficulties. The publisher’s defence to this statement being libel would be limited to proving that such a statement was indeed true.
Pre-action Protocol for Defamation
Defamation claims must abide by the Pre-action Protocol for Defamation. This requires the claimant to notify the defendant of his claim at the earliest opportunity setting out:
- the name of the claimant;
- the words complained of;
- where/ when it was published;
- the reason it is considered defamatory;
- remedies sought;
- facts or matters which make the claimant identifiable from the words complained; and
- details of any special facts relevant to the interpretation of the words complained of and/or any particular damage caused by the words complained of.
The defendant must respond within 14 days explaining whether or not the claim is accepted, whether parts of the claim are accepted (and if so, which parts), or whether the claim is rejected and if so, why.
The parties should consider alternative dispute resolution before heading for trial and costs must be kept to proportionate to the nature and gravity of the case and the stage the complaint has reached.