There are times where someone makes a false statement, in writing or other ways, about another individual that harms their reputation. English law enables the victim of that statement to make a claim in the civil court for defamation, libel or slander – depending on how and where the statement was made.
What is defamation?
A defamatory statement is a false statement of fact exposing the subject of that statement (the victim) to hatred, ridicule or contempt. If the statement of fact is, in fact, true but offensive or unpleasant, it is not defamatory. Statements of opinion, while not in fact true, would be insufficient to be defamatory.
The law of defamation (set out in the Defamation Act 1996) aims to protect the reputation of the victim of a defamatory statement. If the words complained of can be construed to taint the reputation of the victim in the minds of the general public, then an action of defamation can be brought.
To succeed in a defamation claim, the following factors need to be satisfied:
- A false statement must have been made;
- That false statement was published, ie. at least one other person has seen it;
- The false statement has caused the individual’s reputation to be tarnished.
The individual must, therefore, have had a reputation in the first place for it to have been tarnished. For instance, an individual who would be considered as not having a reputation to be damaged is someone who has been convicted of a serious criminal offence. Their reputation will be sufficiently damaged by the conviction to have no untarnished reputation that could be tainted.
On the other hand, an individual who is a prominent campaigner for human rights, but who becomes the victim of a false statement that they made their housekeeper work 12 hours a day without a break, could seek damages for defamation.
The statement must also have been published to at least one other person to be treated as defamatory in law. This could have been published via email, in a newspaper or magazine, on group chats, on social media, in texts, and so on.
Are there any defences to a claim of defamation?
There are specific defences to a defamation claim:
- Where the complainant consented to the statement being made;
- The words were in fact true;
- Privilege – where the statement is made in circumstances where it is protected by privilege (for instance, in Parliament).
What remedies are available?
If you are successful in a defamation claim, you can be awarded damages and an injunction preventing further publication of the defamatory statement. The defendant can also be ordered to pay the legal costs incurred.
Often, the claim will be settled before it reaches court. If the parties are minded to settle for an agreed sum, a formal apology and retraction would normally be made, together with an undertaking by the defendant not to repeat the statement in future.
How is defamation affected by the internet?
The nature of the internet, and continual technological advances, can make a defamation claim more difficult because it can be tricky identifying who to make a claim against. However, recent cases have helpfully clarified the issue.
For instance, where defamatory statements have been made in internet newsgroup sites, the Internet Service Provider (ISP) has been made the subject of the defamation action. This means ISPs should be monitoring the sites they host and ensure they remove potentially defamatory content as soon as practicable.
Slander is almost the same as defamation, except that the statement is made verbally.
What is malicious falsehood?
Malicious falsehood is a statement which has been published maliciously which causes or is likely to cause financial loss to the claimant – but it does not have to be defamatory. In a malicious falsehood claim, the following elements need to be established:
- The person published the statement maliciously knowing it was false, or did not care whether or not it was false;
- Financial loss must have been caused or is likely to have been caused.
It is therefore much harder to prove malicious falsehood than defamation, because malicious intent and financial loss needs to be proved.