Defamation, libel & slander claims

What is defamation?

The level to be awarded will depend upon many factors however the main ones are:-

(a) The seriousness of the defamatory statement.

(b) The size of the circulation of the statement.

(c) The financial harm caused by the statement to you.

(d) The extent and nature of any damage to your reputation.

(e) The conduct of the defendant.

Injunction

If you are successful the court will usually make an order to stop the defendant from publishing the same or similar defamatory allegations. A defendant who breaches the order can be fined or sent to prison for contempt of court.

Publication of a summary of the judgment

Under section 12 of the Defamation Act 2013 a defendant may be ordered to publish a summary of the judgment and the court may determine its wording and method of publication if this cannot be agreed.

Costs

These will generally be paid by the defendant if the claimant wins and vice-versa, although all of the costs of the winning party may not be recoverable.

What can the court not order? An apology

A defendant cannot be forced to apologise. The great advantage of a settlement before trial is that often the defendant will to agree to apologise, which can then be published and used by you.

Damages

To succeed with your claim you must prove 3 things:-

(a)    The statement is defamatory.

(b)   It refers to you.

(c)    It was “published” by the defendant.

Is the statement defamatory?

A statement is defamatory if it is one that when read or heard by an ordinary right thinking member of the public; not avid for gossip causes or is likely to cause serious harm damage to the claimant’s reputation. Where the claimant is a company, the requirement to cause or be likely to cause serious harm means causing of likely to cause serious financial loss.

In assessing whether a statement has that effect the first step is to determine its meaning. To do that a court will ascribe most often the natural and ordinary meaning of the words used; but can also examine the implied meanings, the imputations and innuendos reasonably capable of being conveyed.

If there is more than one meaning it is a question of fact which meaning was understood.

Does it identify you?

In the simplest claims you will often have been named and the issue will not arise, but an unnamed claimant who can be identified by other means as the target of a defamatory statement will be able to sue. The question is does a reader identify you, even if you were not the intended subject of the publication? If so you may succeed.

Has it been published by the defendant?

Publication has a special meaning which is the communication of the statement to another person or persons. One person is sufficient; and the communication can occur in theoretically any form. Even something as obscure as a waxwork being placed in the Chamber of Horrors can be defamatory.

Each and every publication can lead to a claim; and there can be more than one publisher of the same material acted against.

If you can succeed in establishing the basic elements of a claim; and can also defeat any of the defendant’s defences the consequences are as follows.

Claimant

If you can establish at least one of the following defences to a claim you may be able to avoid liability in full; or in some cases minimise liability.

The most common defences are:

• Truth
• Honest opinion
• Publication on a matter of public interest
• Privilege

Truth

If you can show that the defamatory statement is true or substantially true you will succeed. That is the case even if there are some errors in what you have said; provided they are not material errors in the context of the publication. What is material will vary in each situation and involves a balancing exercise.

Honest opinion

This defence protects comments or opinion as opposed to statements of fact. The opinion could be exaggerated or prejudiced provided it has some factual basis. The defence can be lost if the claimant proves that the defendant did not actually believe the opinion.

Publication on a matter of public interest

If you can prove that:

(a) The statement complained of was, or was part of, a statement on a matter of public interest and: 
(b) you reasonably believed that publishing the statement complained of was in the public interest you can succeed.

“Public interest” is not defined but has historically included, but not been limited

(i) Detecting or exposing crime or serious financial impropriety.
(ii) Protecting public health and safety.
(iii) Preventing the public from being misled by an action or statement of an individual or organisation.

Crucial in assessing whether this defence applies will be how you have behaved including, the tone of any publication, and any attempts to seek the subjects comment

Privilege

There are two types of privilege: absolute and qualified.

Absolute Privilege will give you a complete defence regardless of how damaging or malicious your words may be.

It is however very limited and applies to Parliamentary proceedings and papers, affairs of state, fair and accurate reports of court proceedings in the UK, and of certain tribunals; all of which are published contemporaneously.

Qualified privilege will again provide a defence regardless of how damaging words might be; however if a claimant can establish that you made the publication maliciously, you cannot rely on this defence. Generally that will mean that you knew the statement was false, or were reckless as to whether it was true or false.

Trying to define qualified privilege in full has been likened to trying to nail a jelly to a wall – its flexibility which is so useful in practice is what makes this exercise difficult. The classic expression however is that you had a “legal, moral or social duty or interest” in making the publication and the recipients had a corresponding duty or interest in reading or hearing them.

Other defences

If you cannot succeed with any of these you will likely struggle to defend a claim; unless you can show the limitation period for bring the claim of one year had expired before it was issued. However certain other defences exist and can apply in limited circumstances. In particular if the claim is for a publication on the internet the new defence for website operators under the Defamation Act 2013 may assist.

Offer of amends

If you still cannot find any defence mitigation of liability becomes key. An “offer of amends” is an offer by you to apologise and pay damages and costs. If the claimant rejects the offer, you can rely on the offer as a defence.

Defences

Defamation is the cumulative term for libel and slander. Where the defamation is in writing or in some other permanent form it is a libel. Where it is spoken or in some other temporary form it is a slander. Which it is can affect what must be proved to succeed with a claim.

A statement is defamatory if it is one that when read or heard by an ordinary right thinking member of the public; not avid for gossip causes or is likely to cause serious harm damage to the claimant’s reputation. 

The range of what can be a defamatory statement varies however classic examples are: allegations of dishonesty; impropriety or that a company is in financial difficulties.

A claimant who proves the key elements will win the case, unless the defendant can establish at least one of the available defences.

Individuals, companies, firms, certain charities and trade unions can all be defamed and have standing to bring proceedings for libel and slander. In contrast other bodies such as local authorities, councils, government bodies and political parties cannot bring claims; although their individual members may in certain circumstances.

Importantly the limitation period for bringing a claim in defamation is shorter than is generally the case for other claims; and limited to only one year from the date of publication.

Of course the best course of action to be taken is to avoid finding oneself in such a situation and therefore before publishing any comments or statements prepublication advice is often taken by a potential publisher; and indeed post publication and reputation management advice taken by the subject of the publication. We have experience and expertise in offering both of these.

Our cases

Examples of our recent work include:

• Acting for a plc director claiming in respect of widespread allegations of serious misconduct in office.
• Acting for an aviation company in regard to incorrect allegation it was in financial difficulties.
• Acting for prominent members of a nationally recognised charity to claim against publications alleging serious misconduct.
• Acting for a local politician concerning allegation of misconduct in that office
• Acting for a financial profession concerning allegations of dishonesty and misconduct in dealings with clients
• Acting for an education professional concerning allegations of unfitness in office looking after children
• Acting for a company concerning a widespread internet campaign against it.
• Acting for a publisher of alleged defamatory material in a press release
• Acting for a media body in a defamation claim by an individual concerning recent publication.