Guidance note for taking action against online defamation

17 May, 2018

A defamatory statement is a false statement of fact that exposes a person or business to hatred, ridicule, or contempt, causing them serious harm (and in the case of a business, serious financial harm). 

This guidance note explains how to take action against online defamation. 

A defamatory statement is a false statement of fact that exposes a person or business to hatred, ridicule, or contempt, causing them serious harm (and in the case of a business, serious financial harm).

“Defamation” is an umbrella term, covering both libel and slander.

Libel typically involves “lasting” forms of publication (in writing), such as print or online statements – a tweet, for example, whereas slander is more transient and includes spoken words or gestures, such as a video on YouTube or Snapchat.

Whether defamatory statements are made deliberately, with a malicious intent to ‘troll’ and harass, or unknowingly without an intention to cause damage, such comments can cause considerable reputational damage.

This is particularly the case when Social Media is involved as the comments can be spread very rapidly and potentially reach a very large audience.

The threshold for bringing a legal claim for defamation is a high one: the statement is not defamatory unless its publication has caused, or is likely to cause, “serious harm” to the reputation of the claimant.

For an individual, injury to feelings alone will not be sufficient: it will still be necessary to show serious harm to the person’s reputation.

In the case of a “body that trades for profit” (for example, a company), it is not ‘serious harm’ unless it has caused, or is likely to cause, “serious financial loss”.

There are various other criteria which need to be met before a defamation claim can be brought. We regularly advise clients on taking action in claims of online defamation. We can therefore offer fixed prices for each stage of the process, providing certainty and reassurance.

Set out below are the key steps in the process of tackling defamation online and commentary on how we can offer support and assistance at each stage.

It is first important however to be aware of the short timescale you will have in which to bring a claim, explained below.

If you believe you have been defamed, it is important to seek advice without delay.

The limitation period (the time in which to issue a claim at court) for defamation is only 1 year from the date of publication of the defamatory statement.

This is a much shorter period than is typically the case for other civil claims (which can be 6 to 10 years).

Each new publication of the defamatory statement, in substantially the same form, will not reset the limitation countdown.   

Cripps can help by:

  • Advising on the likely date by which a claim should be issued in court.

Once the above deadline is identified, an effective action plan can be formed, which may include some or all of the actions set out below

 

  1. Letter before Action

The first step in engaging the other side is normally to send a Letter before Action.

There is no ‘one size fits all’ and so the letter must be carefully drafted to ensure that it includes both relevant information and demands the appropriate remedies, which may include all or some of the following:

  • a takedown and retraction of the defamatory statement;
  • an undertaking not to repeat the same or similar comments;
  • a payment of compensatory damages; and
  • an apology.

It is important for a claimant to get the Letter of Claim right at the outset; presenting their case in the strongest way, to have maximum impact. 

Cripps can help by:

  • Advising on the merits of the claim (and any other potential actions which may be possible aside from a defamation claim);
  • Drafting the Letter before Action;
  • Advising on any response received, including the implications of any “offer to make amends” made by the defendant (under the provisions of the Defamation Act 1996); and
  • Advising on alternative dispute resolution methods including Mediation.
  1. Contact the Social Media Platform

A take down request can be filed in addition to sending a Letter before Action (which is directed at the author of the statement).

Social media platforms have terms of service which prohibit malicious and defamatory content from being posted.

Reporting functions are available on the main social media platforms to request the take down of objectionable content.

Whilst it does not require a solicitor be instructed to file a report, assistance may be required in the drafting of the complaint.

Cripps can help by:

  • Advising on the correct procedure and drafting the report/complaint to be filed; and
  • Liaising with the social media platform on any response received and/or queries raised.
  1. Contact the ISP

In certain circumstances, it may be possible to send a Take Down notice to the ISP (Internet Service Provider) hosting a website displaying defamatory content.

Unless procedures are followed and timescales are met, under the Defamation Act 2013 and the Defamation (Operators of Websites) Regulations 2013, an ISP may be held liable as a secondary publisher of defamatory material.

Cripps can help by:

  • Advising on the ‘Notice and Take Down’ procedure (the law around this can be complex); and
  • Draft and send an appropriate Take Down notice.
  1. Alternative Dispute Resolution (ADR)

Even in the most bitter of disputes, the courts encourage parties to seek settlement of their dispute through ADR.

ADR  may be negotiating settlement terms through an exchange of Without Prejudice correspondence,  or it may be a Mediation process.

In consideration of the costs of pursuing a defamation claim through the courts, ADR is potentially a very attractive and effective option. ADR can be run alongside formal ‘open’ correspondence.

ADR should not be seen as a ‘second best’ resolution or outcome for a claimant, as it can offer distinct advantages over court proceedings. For example, an apology is not a remedy available at trial, however an apology can form part of a negotiated settlement in ADR.

Cripps can help by:

  • Advising on the ADR options available, formulating a strategy.
  1. Court Proceedings

If the above steps are unsuccessful at resolving the dispute the next stage is to consider issuing a claim in court.

This is not a decision to be taken likely however, in consideration of the costs and risks of doing so.

Cripps can help by:

  • Advising on the merits of the claim;
  • Advising on likely legal costs and the risks if unsuccessful; and
  • Advising on the remedies the court may award at trial, which can include:
    • damages (the court will asses the gravity of the libel and numerous other factors when assessing the likely level and form of damages);
    • a permanent injunction; an order removing the defamatory statement; and
    • an order requiring the judgment be published somewhere public by the defendant.

In a claim for defamation, the party bringing the action does not need to establish any sort of intention to defame; all they need to do is establish that a statement is defamatory. The focus will then shift to the defendant to establish a valid defence.

Cripps can help by:

  • Advising on potential defences that may be relevant in the circumstances of the case, or those which could be raised by the Defendant, including the most common: Truth; Honest Opinion and Qualified Privilege.
  • Advising whether the presence of malice could affect the merits of the claim and any defence raised.

In consideration of the relatively short limitation period for defamation claims, it’s important not to delay in engaging with the publisher of the defamatory statement.

Considering the typically high costs of taking a defamation claim to trial, there are benefits for both sides in resolving the dispute before a claim is issued in court.

  1. Letter before Action

The first step in engaging the other side is normally to send a Letter before Action.

There is no ‘one size fits all’ and so the letter must be carefully drafted to ensure that it includes both relevant information and demands the appropriate remedies, which may include all or some of the following:

  • a takedown and retraction of the defamatory statement;
  • an undertaking not to repeat the same or similar comments;
  • a payment of compensatory damages; and
  • an apology.

It is important for a claimant to get the Letter of Claim right at the outset; presenting their case in the strongest way, to have maximum impact. 

Cripps can help by:

  • Advising on the merits of the claim (and any other potential actions which may be possible aside from a defamation claim);
  • Drafting the Letter before Action;
  • Advising on any response received, including the implications of any “offer to make amends” made by the defendant (under the provisions of the Defamation Act 1996); and
  • Advising on alternative dispute resolution methods including Mediation.
  1. Contact the Social Media Platform

A take down request can be filed in addition to sending a Letter before Action (which is directed at the author of the statement).

Social media platforms have terms of service which prohibit malicious and defamatory content from being posted.

Reporting functions are available on the main social media platforms to request the take down of objectionable content.

Whilst it does not require a solicitor be instructed to file a report, assistance may be required in the drafting of the complaint.

Cripps can help by:

  • Advising on the correct procedure and drafting the report/complaint to be filed; and
  • Liaising with the social media platform on any response received and/or queries raised.
  1. Contact the ISP

In certain circumstances, it may be possible to send a Take Down notice to the ISP (Internet Service Provider) hosting a website displaying defamatory content.

Unless procedures are followed and timescales are met, under the Defamation Act 2013 and the Defamation (Operators of Websites) Regulations 2013, an ISP may be held liable as a secondary publisher of defamatory material.

Cripps can help by:

  • Advising on the ‘Notice and Take Down’ procedure (the law around this can be complex); and
  • Draft and send an appropriate Take Down notice.
  1. Alternative Dispute Resolution (ADR)

Even in the most bitter of disputes, the courts encourage parties to seek settlement of their dispute through ADR.

ADR  may be negotiating settlement terms through an exchange of Without Prejudice correspondence,  or it may be a Mediation process.

In consideration of the costs of pursuing a defamation claim through the courts, ADR is potentially a very attractive and effective option. ADR can be run alongside formal ‘open’ correspondence.

ADR should not be seen as a ‘second best’ resolution or outcome for a claimant, as it can offer distinct advantages over court proceedings. For example, an apology is not a remedy available at trial, however an apology can form part of a negotiated settlement in ADR.

Cripps can help by:

  • Advising on the ADR options available, formulating a strategy.
  1. Court Proceedings

If the above steps are unsuccessful at resolving the dispute the next stage is to consider issuing a claim in court.

This is not a decision to be taken likely however, in consideration of the costs and risks of doing so.

Cripps can help by:

  • Advising on the merits of the claim;
  • Advising on likely legal costs and the risks if unsuccessful; and
  • Advising on the remedies the court may award at trial, which can include:
    • damages (the court will asses the gravity of the libel and numerous other factors when assessing the likely level and form of damages);
    • a permanent injunction; an order removing the defamatory statement; and
    • an order requiring the judgment be published somewhere public by the defendant.

In a claim for defamation, the party bringing the action does not need to establish any sort of intention to defame; all they need to do is establish that a statement is defamatory. The focus will then shift to the defendant to establish a valid defence.

Cripps can help by:

  • Advising on potential defences that may be relevant in the circumstances of the case, or those which could be raised by the Defendant, including the most common: Truth; Honest Opinion and Qualified Privilege.
  • Advising whether the presence of malice could affect the merits of the claim and any defence raised.

In addition to the above, a defamed company may consider, as an alternative to a defamation claim, a claim for Malicious Falsehood. Where a statement goes beyond mere comparative advertising and slanders a company’s products for example, a claim for Malicious Falsehood may be possible.

However, even before initial correspondence is sent, it is important to consider the potential risks of pursuing a matter.

Cripps can help by:

  • Advising on the options available for a defamed company, including whether a claim for Malicious Falsehood may be possible as an alternative to a defamation claim;
  • Advising on strategy in tackling malicious statements;
  • Advising on other potential legal claims including Passing-Off; and
  • Advising on the potential alternatives to legal action.

There are various options potentially available to a party that has been defamed, and no ‘one size fits all’.  

The relatively short limitation period in which a defamation claim can be brought means initial advice should be sought without delay, from a lawyer specialised in this field.

The law relating to defamation is complex and constantly developing.  The purpose of this note is to assist in providing an overall understanding of the legal context within which such claims operate.

This guidance note is not intended as specific legal advice.  Each case is judged on its own merits, against its own particular set of facts and will typically involve an objective assessment by the court of the precise words used.

If you require further guidance please contact Will Charlesworth at will.charlesworth@crippspg.co.uk or on +44 (0)1892 506 004