Defamation

Defamatory statements

A defamatory statement is one which is false and causes damage to a person’s reputation or otherwise does them harm.

Libel is the term given to defamation in a permanent form, such as in print. Since the Broadcasting Act 1990, this also includes statements that are broadcast on the radio or television, even though the words are in this case spoken rather than written. It is the tangibility of the statement that really matters – libel deals with statements that are recorded. Defamation in a transitory and non-permanent form (eg, defamatory statements which are spoken) is known as slander.

Defamation and chat rooms

Libel can also include comments made online, including comments in emails or on websites. Usually comments made in a chat room or on a bulletin board/forum are considered slanderous, since their usage resembles casual conversation.

Claiming defamation

For a person to bring a claim of defamation, it must be shown that the statement:

  • was made to somebody other than the claimant;
  • has caused or would be likely to cause serious harm to the claimant’s reputation (Defamation Act 2013, s 1(1)). Harm to the reputation of a body that trades for profit is not ‘serious harm’ unless it has caused or is likely to cause the body serious financial loss (Defamation Act 2013, s 1(2));
  • may expose the claimant to contempt, disliking, hatred or ridicule;
  • may cause the claimant to be shunned by society or avoided by people;
  • was clearly applicable to the claimant, although they do not necessarily have to be named (eg, ‘the head of London Metropolitan Police Force’ would be sufficient without explicitly naming the claimant).

If someone claims that a person has made defamatory statements about them, the onus is on the person who made the statements to prove that the statements are true.

Libel

Awards

If libel is proven, damages are then assessed, which are affected by numerous criteria including:

  • How widespread the news was (the more widely circulated the story is, the greater the damage usually).
  • Who sees the statement (if interested parties have seen the allegations, the damage may be considered more grievous. For example, if a statement about somebody’s business conduct was published in a specialist publication, even if the circulation is small, the damages may be high because potential clients could see the statement and be deterred from trading with that person).
  • Loss of earnings will usually be taken into account, though they can be open to interpretation and it must be possible to show a link between the loss of earnings and the statement in question.

‘General damages’ are awarded with the aim of vindicating a claimant and compensating them for their lowered reputation and their injured feelings.

‘Special damages’ aim to compensate the claimant for reasonably foreseeable financial loss (eg, the loss of a contract).

Courts also have the power to order websites to take down defamatory statements or prohibit further distribution, sale or exhibition of defamatory statements.

Slander

Slander differs from libel in that the claimant must usually prove that the defamatory comments have had an adverse effect upon their reputation, which may entail proving that the statement resulted in financial damage or lost business.

However, there are circumstances where no damage needs to be proven. This includes, for example, allegations that relate to:

  • criminal offences that are punishable by imprisonment;
  • professional ability.

Defences for defamation

Under the Defamation Act 2013, s 3, it is a defence against an action for defamation if the defendant can show that:

  • the statement complained of was an honestly held opinion;
  • the statement complained of indicated, whether in general or specific terms, the basis of the opinion; and
  • an honest person could have held the opinion on the basis of (a) any fact which existed at the time the statement complained of was published; or (b) anything asserted to be a fact in a privileged statement published before the statement complained of.

Other defences include:

  • that the imputation conveyed by the statement complained of is substantially true;
  • that the statement complained of was one on a matter of public interest; and that the defendant reasonably believed that publication was in the public interest;
  • that the operator of a website sued for defamation did not post the statement on the website;
  • that the statement relates to a scientific or academic matter and was published, without malice, in a scientific or academic journal;
  • that the statement was a fair and accurate report of privileged proceedings (eg, a court case).

Criminal defamation

Defamation is now a civil action only in the UK since criminal defamation was abolished by the Coroners and Justice Act 2009. Section 73 of that Act, which came into force on 12 January 2010, brought an end to the criminal defamation offences of sedition and seditious libel, the offence of defamatory libel, and the offence of obscene libel. It was widely felt that the UK’s retention of the archaic criminal offence of defamation justified its use by foreign countries to restrict free speech and to prosecute and imprison journalists.

Repeating defamatory claims

A person who takes another person’s statement as fact and repeats it can also be sued for defamation. Victims of defamation should be aware that a frequently used defence by the accused is to claim that when the false information was printed/said elsewhere at any earlier date, the person did not complain. It is therefore prudent for a victim of libel to make a complaint as soon as the statement is first disseminated.