Guide to the Law Relating to Defamation

13 July, 2017

Celebrities and other public figures attract attention with high-profile defamation claims, brought in order to protect their reputations.

However, it is not just the newsworthy few who have reputations to protect.  With the constantly developing world of social media, there is an increasing risk that anyone could be the subject of a defamatory tweet or Facebook post. 

Our Guide to the Law Relating to Defamation outlines the key legal concepts that are relevant to the law on defamation in the UK and considers what practical steps could be taken by a defamed party.  

Social media encourages us to share content and opinions.

The risk with sharing is that we share too much and comments which defame people or businesses can spread quickly. Social media platforms are designed to allow fast and easy sharing.

Whether harmful comments are made deliberately, as part of a malicious campaign of trolling and harassment, or are made innocently without any intention to harm, the comments can still have a very damaging affect on a person’s reputation.

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

What’s the difference? Both concern the publication of defamatory material, however libel typically involves “lasting” forms of publication (in writing), such as print or online statements, whereas slander is more transient and includes spoken words or gestures.

The threshold for bringing a 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 some cases the words used can be so damaging in themselves (for example to falsely accuse a teacher of being a paedophile) that serious harm can be inferred by the court without need for further evidence.

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”.

For an individual, a claim for defamation is a ‘personal action’, meaning only the person defamed may bring the claim.

It is also necessary to establish the publication by the defendant of the defamatory words (which may be easier with libel than slander), and the defamatory words must identify the claimant (which will be easier in some cases than others). Where identification is disputed, or where it’s unclear, it would have to be determined by the court.

Set out below are the steps which can be taken when a defamatory statement has been made, and how Cripps can assist.

  1. Letter before Action

The first is normally to send a Letter before Action to the publisher of the defamatory statement.

There is no ‘one size fits all’ and so the letter must be carefully considered and drafted to ensure that it includes all relevant information and demands the appropriate remedies. These typically include:

  • Demanding a takedown and/or retraction of the defamatory statement;
  • an apology and perhaps also a payment of legal costs. Considering the typically high costs of taking a defamation claim to trial, there are benefits for both sides in resolving the dispute at the pre-action stage.

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

Cripps can help by:

Drafting a Letter before Action

It’s not always possible to identify who made the defamatory statement.

With consumer review sites for example, comments are sometimes left anonymously and, in some cases, websites are set up with the sole intention of defaming a party. For example, it is possible for the identity of the owner/operator of a website/domain name to be protected behind a ‘privacy shield’, ensuring anonymity. This can present problems for a claimant in satisfying one of the key elements of a defamation claim: identifying the author/primary publisher. 

In these circumstances, it may be necessary to consider the potential liability of the ISP (Internet Service Provider) in its role in hosting the website and whether a ‘Notice and Take Down’ letter could be sent, requesting the website itself is taken down.

A Notice and Take Down letter has evolved as the law has changed, following the Defamation Act 2013 and the Defamation (Operators of Websites) Regulations 2013.

It is generally in the interests of the ISP or website owner to assist a claimant because unless the detailed procedures set out in the Act and Regulations are followed, within strict timescales, they may be held liable as secondary publishers of the defamatory material.

It is recommended that legal advice is sought if a Notice and Take Down letter appears relevant, as the law around the liability of ISPs in particular can be complex.

Whilst the court does have some discretion to extend the limitation period (the time in which to bring a claim) for defamation claims, it is generally only one year. This is a much shorter period than is typically the case for other civil claims, which can be between 6 to 10 years.

The limitation period will start from the date of publication of the defamatory statement.

The Defamation Act 2013 introduced the “single publication rule” meaning that where a statement is re-published in substantially the same form as a previous statement, the limitation period time is deemed to run from the first publication and not any subsequent re-publication. This perhaps has most significance for statements published online where it used to be said that each new ‘hit’ on a website was a new publication.

In consideration of the short limitation period, it is recommended that anyone who believes they may have been defamed seeks legal advice without delay.

It is common for the defamed party to want (perhaps in addition to damages) an apology and a retraction of the defamatory comments.

The Court however has limited powers in this regard and it cannot order an apology or a retraction; nor does it have a general power to require the maker of the defamatory statement to correct it, or declare the statement to have been false.

However, the remedies that are potentially available are: damages; an injunction; the publication of a summary of the court’s judgment; and an order to remove the defamatory statement. Where judgment is given for the claimant, the court has the power to order the defendant to publish a summary of the judgment.

Damages are the primary remedy in a defamation claim and can be assessed in numerous ways, including compensatory and exemplary damages. The Court will consider injury to the claimant’s feelings, the gravity of the libel, the extent and nature of the publication, and whether there are any mitigating factors when assessing the level of damages to award.

Before trial it is not generally possible to stop further defamatory statements being made.

In order to uphold principle of ‘freedom of speech’ an ‘interim injunction’ is not usually granted in defamation cases; damages are viewed as providing an adequate remedy.

A final injunction may however be available after trial, if the court is satisfied it is necessary to restrain further or future publication of the words complained of or any similar defamatory matter.

Social media is becoming an easy way to bypass a traditional, private, customer services complaints phone line and instead complainants can carry out a very public naming and shaming. Consumer forums provide a free exchange of, sometimes anonymous, comment.

Whilst it may be difficult to fault the actions of a few genuinely angry consumers, when those comments are found to be false or they are clearly not an honestly held opinion but instead are malicious in nature, they could be held to be defamatory, entitling the aggrieved party to pursue a legal action.

It’s worth remembering, however, that whilst the basic elements of a defamation claim are set out above, whether or not a person can bring a successful claim would depend upon the individual facts and circumstances of each individual case.

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.

Perhaps the most commonly quoted defences are Truth, Honest Opinion and Qualified Privilege:

Truth

The defendant need only prove the essential substance of the statement is true, what lawyers sometimes call “defamatory sting”, rather than every single word.

This can be a difficult or tricky defence to advance because the more serious and damaging the defamatory statement, the harder it can be for the defendant to justify the truth of it.  There can often be complicated disputes between the parties as to the correct interpretation of the meaning of what was said.

 

Honest Opinion

This used to be known as ‘fair comment’. There are strict criteria that must be met in order to be able to rely upon this defence, and even if those criteria are met, the defence will be defeated if the claimant can show malice.

Qualified Privilege

This arises where:

  • the person who makes the communication has a duty (legal or moral) or interest to make it to the person to whom it is made;
  • the person to whom it is made has a corresponding interest or duty to receive it; and
  • the person who makes the communication is not motivated by malice.

This can commonly arise in, for example, the reporting of a crime to the Police. If a member of the public wishes to make what could be a very shocking allegation about another person to the Police, say a claim of child abuse, then that would be protected by Qualified Privilege. 

The above is not intended to be an exhaustive list of potential defences and there are others, including: Public Interest, Peer-reviewed statements in scientific and academic journals, and Absolute Privilege (in the case of court proceedings, for example).

If an innocent mistake has been made, a party can follow a detailed procedure set out in the Defamation Act 1996, in order to make an ‘offer to make amends’ to the defamed party. Such an offer will normally include an offer to make and publish a suitable correction, with a suitable apology and an offer to pay compensation and legal costs.

The advantage of making such an offer is that if it is not accepted by the claimant, it can provide a complete defence to a claim for libel.

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

This article 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.

Accordingly, in the event of such a dispute it is recommended that formal legal advice from a lawyer with expertise in this field is sought at the earliest opportunity. 

For more information please contact Will Charlesworth on +44 (0)1892 506 004 or will.charlesworth@crippspg.co.uk