Most people believe that Defamation which can either be slander or libel is only relevant to those in powerful and rich positions.  An example of a Defamation claim, (although it occurred across the pond) was between Johnny Depp and Amber Heard.  

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The law of defamation aims to protect reputation, and applies to both individuals and companies. 

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There are two different types of civil claims for defamation: 

• libel - which relates to the publication of a statement in permanent form, such as in writing, this also includes broadcasts or stage productions;

• slander - relates to making a statement by speech, gestures or conduct.

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What is the defamation legislation?

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The Defamation Act 1996 (DA 1996) remains largely in force, the most important provisions being those relating to the offer of amends defence (sections 2 to 4) and statutory privilege (sections 14 and 15).   Since the new Defamation Act of 2013, (DA 2013), came into force on 1 January 2014 (please also see below) a Claimant must demonstrate that the publication of the statement caused or is likely to cause serious harm to their reputation.

 

A few provisions of the Defamation Act 1952 (DA 1952) and of older Acts remain on the statute book, but these are rarely encountered in practice, with the exception of sections 11 (agreements for indemnity) and 12 (evidence of other damages recovered by claimant) of the DA 1952.

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Since the Human Rights Act 1998 came into force, the law of defamation has had to accommodate the provisions of the European Convention on Human Rights (ECHR). It has been recognised in a number of decisions in the European Court of Human Rights that an individual's right to reputation is part of the Article 8 right to respect for private life. In some cases, it will be necessary to balance that right against the right to freedom of expression enshrined in Article 10.   We understand the human rights legislation and how this has to be interpreted alongside defamation law of libel and slander.

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The Electronic Commerce (EC Directive) Regulations 2002 (SI 2002/2013) (E-Commerce Regulations) can also be relevant in cases involving allegations of online defamation, as they protect innocent disseminators of defamatory material over the internet.

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All EU case law that was current at the end of the post-Brexit transition period was retained as part of UK law. However, the UK courts may depart from that case law, subject to certain limitations set out in the UK-EU withdrawal agreement.  The EU caselaw continues to have some relevance in UK law on an ongoing basis, although EU principles and decisions made after the end of the transition period are not binding on UK courts or tribunals.

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Possible defamation claimants may have other legal options available to them. Those include malicious falsehood, breach of confidence, misuse of private information, harassment, breach of data protection laws and infringement of intellectual property rights. We are able to advise you on every aspect of defamation law and related tort actions.

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​How does a claim start?

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The Claimant first sends the Defendant a Letter Before Action under the Court pre-action protocol for media and communication claims here.  The Protocol sets certain standards which prospective parties to a defamation claim are expected to observe before court proceedings are issued. The Protocol encourages the parties to exchange information at an early stage and to consider using a form of alternative dispute resolution (i.e. exploring settlement without the need to go to court.

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Once the Protocol has been exhausted, or it becomes clear to a Claimant that the Defendant is not going to co-operate with attempting to resolve without Court, a claim form must then be filed in the High Court.   Once the claim form has bee sealed (stamped) by the Court and served on (sent to) the  Defendant, the Court rules must be followed and that includes all deadlines for taking steps set down by the Court procedures under the Civil Procedure Rules. 

 

What does the Claimant need to show? 

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A claimant needs to show that the statement complained of:

• is defamatory, meaning that an ordinary person would think worse of the claimant as a result of the statement;

• identifies or refers to them, and

• is published to a third party.

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Since the new Defamation Act of 2013, (DA 2013), came into force on 1 January 2014 a Claimant must also demonstrate;

 

• that the publication of the statement caused,

• or is likely to cause,

• serious harm to their reputation.

 

In the case of bodies (businesses) trading for profit, the serious harm to its reputation needs to have caused, or be likely to cause, it serious financial loss.

 

The harm threshhold was established in the well known case of Thornton v Telegraph Media Group and it was raised from 'substantial' to 'serious' by a 2017 Court of Appeal case Lachaux v Independent Print Limited & Ors [2019] relating to Section 1(1) of the Defamation Act (although it does not relate to Section 2(2) of the DA 2013.

 

A claim for slander also requires proof of special damage, meaning financial loss, unless the allegation falls within two categories:

1. an imputation that the claimant has committed a criminal offence punishable by imprisonment, or

2. where the words are calculated to disparage the claimant in any office, profession, calling, trade or business carried on by him at the time of publication.

 

From the outset of a defamation claim, both parties will identify and say what they consider to be the natural and ordinary meaning of the words complained of: in other words, what ordinary people would have reasonably understood the words to have meant using their general knowledge and common sense. It will be no surprise that the words used would cause the Claimant more offence, and therefore they will argue that what was said was serious and the Defendant would refute that the words were not as serious as the Claimant makes out.

 

There must, be a single meaning to the words complained of, against which the claim for defamation, and any potential defence of truth, is judged. This is known as the 'single meaning rule'. The meaning of the words complained of is often determined by the court as a preliminary issue, which means before a trial of the case commences.  This is done so as to avoid the costs and time wasted if the Claimant is unable to successfully demonstrate that the words used were sufficiently serious enough.

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Are there any defences to Defamation?

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Offer of amends

There is a statutory procedure (sections 2 to 4, DA 1996) available to a defendant who has made an innocent mistake and does not wish to defend the claim on a substantive basis. This procedure is aimed at providing a quick and inexpensive resolution of cases in which a defendant is prepared to admit that it has libelled the claimant, as well as entitling defendants who make such offers to a discount on the level of damages payable.

 

An offer of amends must be in writing and may be made in relation to the statement generally or may be a qualified offer relating to a specific defamatory meaning which the defendant accepts. The defendant must refer to the procedure and offer to make and publish a suitable correction and sufficient apology and to pay the aggrieved party compensation and reasonable legal costs, if appropriate. An offer must be made before a defence is served and, if accepted, can be enforced by the claimant.

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If the offer is accepted, the claimant may not bring or continue defamation proceedings against the defendant (offeror). If the parties cannot agree the correction and apology, the defendant can publish what it considers appropriate. Regardless of whether the claimant believes an apology and correction are unsuitable, once an offer has been accepted, it is binding and cannot be invalidated by a disagreement over the content of an apology and correction or the proposed level of damages. The parties need not agree the content of the offer at all. If the amount of damages is disputed, the court has the power to fix the amount of damages and to allow the claimant to make a statement in open court. The court will take account of the apology and correction published when assessing compensation under the procedure, as well as factors that go to the mitigation (actions taken by either party to reduce the financial loss and impact), aggravation and causation of the loss. 

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If the offer is not accepted, an offer of amends provides a complete defence to a claim for libel in respect of the meaning to which it relates, unless the claimant can show that the defendant knew or had reason to believe that the statement complained of was false and defamatory of the claimant.

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In assessing compensation, the court will apply a discount of up to 50% to reflect the offer of amends.  The amends regime was intended to be conciliatory and achieve swift settlement before litigation.

 

Even where a claimant is able to prove that all of the requirements which are set out above are satisfied and that the statement made by the Defendant was defamatory, a Defendant may have a defence either that it was true; that it was an honest opinion; that the publication was on a matter of public interest.

 

It was true - If it was found to be true, this is a complete defence if the Defendant can show that the words stated are “substantially true”. It is not necessary to prove the truth of every detail - just the sting of the allegation. As mentioned above, the natural and ordinary meaning of the words complained of is important, as it decides exactly what “sting” the defendant must prove to be substantially true.

 

Honest opinion provides a defence if the statement complained of: 

• was one of opinion;

• indicated the basis of the opinion, whether in general or specific terms, and

• was an opinion which could have been held by an honest person on the basis of any fact which existed at the time the statement was published, or anything asserted to be a fact in a privileged statement published before the statement complained of.

 

The maker of the statement need not know the fact upon which an honest person could have held the opinion. Nor must the opinion concern a matter of public interest, if a claimant can show that the defendant did not hold the opinion, the defence will be defeated.

 

Publication on public interest - There two limbs to the defence of publication on public interest, which requires the Defendant to show:

• that the statement complained of was, or formed part of, a statement on a matter of public interest, and

• a reasonable belief that publishing the statement complained of was in the public interest.

 

What is in the public interest is potentially very wide, including any matters that touch on the public life of the community, although it needs to be more than simply newsworthy. Matters relevant to assessing a Defendant’s reasonable belief include attempts made to verify the truth of what is being published, the nature of the sources of information and the extent to which the claimant was given an opportunity to respond or comment.

 

The Court must take into account all the circumstances of the case to establish whether the Defendant has satisfied the requirements for a defence as referred to above.  The Court will make allowance for editorial judgment in determining whether it was reasonable for the Defendant to believe that publishing the statement complained of was in the public interest. This defence is available whether the statement complained of was one of fact or opinion.

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Allowance is specifically made in the DA 2013 for a neutral account of a dispute to which the Claimant is a party, without taking steps to verify the truth of the allegations reported.  The Court should disregard any omission by the Defendant to verify the truth of the allegations reported when assessing whether it was reasonable for the Defendant to believe that publishing the statement complained of was in the public interest.

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There are a number of defences available to internet intermediaries:-

 

• The Defamation Act 1996 -  'innocent dissemination’ .  If a Defendant can show that they are not the author, editor or publisher of the statement complained of, that they took reasonable care in relation to its publication and that they did not know, and had no reason to believe, that what they did caused or contributed to the publication of the defamatory statement.

• The website operator’s defence: it is a defence for the operator of a website to show that it was not the operator who posted the statement on the website. However, the defence is defeated if the website operator does now follow the procedure set out in section 5 of DA 2013 and the Defamation (Operators of Websites) Regulations of 2013 following receipt of a notice of complaint from a Claimant who is unable to identify the person who posted the statement, with sufficient detail to allow proceedings to be served on them.

• The E-Commerce Regulations of 2002 defences: providers of "information society services" who play an intermediary role as "mere conduits" or by “caching” or "hosting" defamatory material are provided with a defence under regulations 17, 18 and 19.

 

The Court does not have jurisdiction over a defamation claim brought against a person who was not the author, editor or publisher of the statement complained of unless they are satisfied that it is not reasonably practicable to bring a claim against the author, editor or publisher.

 

A publisher is defined in DA 1996 as being “a commercial publisher, that is, a person whose business is issuing material to the public, or a section of the public, who issues material containing the statement in the course of that business”.

 

Absolute privilege – potential claimants are prevented from bringing defamation proceedings in certain situations, where the occasion on which the statements were made is considered sufficiently important to impose such a restriction. This applies if there are clear public policy reasons for ensuring that there are no limits on the freedom of speech. Such situations include statements made in the course of judicial proceedings, parliamentary proceedings or papers, and contemporaneous reports of judicial proceedings.

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Qualified privilege - there are two types of qualified privilege - statutory qualified privilege and common law qualified privilege.

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Statutory qualified privilege covers the publication of any fair and accurate report or statement on a matter of public interest mentioned in Schedule 1 of DA 1996 as amended by section 7 of DA 2013. This defence can be defeated if there is evidence that the publication was made with malice.

 

Examples of statutory qualified privilege include fair and accurate reports of proceedings in public of legislatures or courts or international organisations anywhere in the world; fair and accurate reports of proceedings at a general meeting of a UK public company; fair and accurate reports of findings or decisions of certain public bodies and associations; fair and accurate copies or extracts from any register or other documents required by law to be open to public inspection; and fair and accurate copies or extracts from any documents circulated to members of a UK public company with the authority of the board or by the auditors.

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The defence of common law qualified privilege covers statements made where there is a reciprocal relationship of duty, including a social or moral duty, and interest between the person making the statement and the person receiving it, for example in situations such as the providing of an employment reference; a member of the public complaining to the police; reporting activities of a fellow employee to a superior, or internal company communications. This defence also covers statements made to protect a legitimate interest, such as to defend oneself from a false accusation, provided the statements were made in good faith a relevant to the issues.

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Peer reviewed statements in a scientific/academic journal

DA 2013 extended qualified privilege to cover peer-reviewed statements published in scientific or academic journals.

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What are the Remedies?

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Proof of special damage, meaning financial loss, is required for slander claims, unless the allegation falls within two categories: an imputation that the claimant has committed a criminal offence punishable by imprisonment; or where the words are calculated to disparage the claimant in any office, profession, calling, trade or business carried on by him at the time of publication

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Compensatory damages aim to compensate for damage to reputation, vindicate the claimant’s reputation and take account of the distress, hurt and humiliation which the defamatory publication caused. This assessment necessarily involves a subjective element, and factors relevant to this assessment include the gravity of the allegation, the extent of the publication and the behaviour of the defendant, which may be aggravating or mitigating.

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Exemplary damages may be available where a publisher knew, or was reckless as to whether, he was committing an offence and decided to publish anyway, as the gain outweighed the potential loss.

Injunctions

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It is very unlikely that an interim injunction will be granted to a Claimant if a Defendant states his intention to rely on a substantive defence (Bonnard v Perryman). Final injunctions may be available to prevent further publication if the Claimant is successful at trial.

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Publication of a judgment summary in open court

Where a court gives judgment for the Claimant in an action for defamation the Court may order the Defendant to publish a summary of the judgment.

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Non legal remedies - As an action for defamation aims to protect reputation, the remedies which a claimant is likely to be most interested in are obtaining an apology, a retraction and a corrective statement.

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