What is Defamation?

 

A defamatory statement is one which injures the reputation of another person: it “tends to lower him in the estimation of right-thinking members of society generally.^”  There is no single definition of what defamation is as most of the original law pertaining to defamation, prior to the Defamation Act 2013, comes from case law. A statement is defamatory when an ordinary, reasonable person when reading or hearing the statement,

• thinks less of the party referred to.
• thinks the party referred to lacks the ability to effectively do their job.
• shuns or avoids the party referred to.
• treats the party referred to as a figure of fun or an object of ridicule.

 

Photo by @jonathanneversleeps from unsplash

 

There are two types of defamation: Libel and slander.

Libel is when the false statement is written – like in a newspaper or in a social media post.

Slander is when the false statement is spoken.

A party does not need to be specifically named in the false statement to be a victim of defamation. But the statement must allow you to be identified.

Such a statement constitutes a “libel” if it is:

• published (publication, for these purposes, is simply the communication of the defamatory matter to a third person)²; and
• in writing, print or some other permanent form.

A statement will amount to a “slander” if it is

• published; and
• made orally or in some other transient form.

. An action for defamation can be brought by:

• an individual.
• a company, in respect of statements that damage its business reputation.

An action for defamation cannot be brought by a Local Authority nor by any other public authority.

 

What does the Law say about defamation?

There is no single definition of what defamation is as most of the original law pertaining to defamation, prior to the Defamation Act 2013, comes from case law. The Defamation Act 2013 was introduced to reform aspects of the law of defamation which were largely developed by common law, with periodic statutory supplements. Not only was the law of defamation outdated for new forms of digital media, but common law rules were also seen to favour the protection of reputation over freedom of expression.

Defamation Act  2013 s 1 introduced a threshold requirement that a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant, giving statutory effect to the common law threshold tests in Thornton v Telegraph Media Group and Jameel (Yousef) v Dow Jones & Co but raising the threshold bar from the common law requirement of ‘substantial’ harm to ‘serious’ harm as affirmed in Lachaux v Independent Print Ltd and Evening Standard Ltd [2019] UKSC 27.

This is qualified by s 1(2) in that for the purposes of s1, 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.

Can a party be defamed on social media?

Yes – defamatory statements published on Twitter, Facebook, Whatsapp groups and all social media handles can cause “serious harm” just as a newspaper article can. Arguably, they can cause more damage than traditional media outlets because a defamatory statement can be reproduced and shared so quickly and with such a global reach.

The complicating factor is that social media posts can be deleted and edited with ease. This is why it can be in the claimant’s interest to take screenshots or records of offending posts.

Defamation can also be the leaking of private direct messages commonly known as DMs or posts. This was the case in the high profile so-called “Wagatha Christie” trial, in which Coleen Rooney accused Rebekah Vardy of leaking her private Instagram posts to The Sun.

What are defences to defamation?

There are a number of defences to an action for defamation, including:

• the words complained of are true in substance and in fact;
• the statement is protected by absolute privilege (see 1 below);
• the statement is protected by qualified privilege (see 2 below);
• the statement constituted fair comment on a matter of public interest: that is, opinion which any person could honestly hold, based on facts known at the time;
• the words were published innocently by a party who was not the author, editor or publisher of the statement, who took reasonable care in relation to its publication, and did not know, and had no reason to believe, that what they did caused or contributed to the publication of a defamatory statement and an “offer of amends” has been made. Proceedings cannot be taken if the offer of amends is accepted. It will constitute a defence if the offer was made as soon as practicable after the publisher received notice that the words might be defamatory.
• Publication on a matter of public interest provides for the defence to be available in circumstances where it can be shown that the statement complained of was, or formed part of, a statement on a matter of public interest and that it was reasonably believed that publishing the statement complained of was in the public interest.

 

1. Absolute privilege refers to:
   1. words spoken in the ordinary course of legal proceedings.
   2. a fair and accurate report of public legal proceedings published contemporaneously with such proceedings⁷. Fairness requires that reports should be impartial and should convey the substance of what has taken place in court.
2. Qualified privilege refers to:
   1. where the person who makes the communication has a duty to its recipients and they have an interest in receiving it (eg. where you have sought to publicise, a letter containing implications for public safety);
   2. where it fairly and accurately reports public legal proceedings (they do not have to be published in a newspaper or be contemporaneous).

What is the impact of defamation?

Defamation can have a lasting effect:

• Careers can be harmed.
• Reputations can be harmed.
• It can also have serious effects on individual’s mental health and general well-being.
• Businesses can also be hurt. They can lose customers or have to stop trading.
• Social media is powerful in influencing opinions. Lies can be spread easily and quickly.

Examples of defamation

You don’t have to look too far to find examples of high-profile defamation cases. For example:

• Johnny Depp v The Sun
• Rebekah Vardy v Coleen Rooney
• Max Mosley v News of the World
• Ian Watkins v E! Entertainment Television

Details of the cases are available online and would make interesting reading at your leisure.

What can I do if I am a victim?

Any person or business can be a victim of defamation and make a claim for compensation. But to do so successfully, the statement which is the subject of the defamation claim

1. must be proven to be false, and
2. must be proved to have damaged the reputation of the person or business making the claim.

What are the risks if I go to court?

If you choose to make a defamation claim and go to court:

• the case will be held in public. That means even more people could hear or read about the damaging remarks that have been made about you.
• The case might also go deeper into the history of how and why the remarks were made, possibly damaging your reputation further.
• Cases can also last a long time and be very costly.

How are defamation cases settled?

Victims of defamation can receive:

• Compensation
• An apology or retraction
• An injunction to remove defamatory statements and prevent re-publication

Conclusion

In conclusion here are some basic rules that are useful to follow to avoid defamation suits:

• always pause before you post or put something in the public domain,
• never post in anger,
• carefully consider the possible implications of any statement you say or make public.
• Never unnecessarily risk having another bringing a claim against you or your business for alleged defamation. The financial consequences may be the difference between the closure or continued operation of your business

We hope you have found this bulletin informative and of interest to yourself/organisation. We also hope we have amply demonstrated the importance of and consequences of statements you or your organisation make about other parties. Action can be taken and remedies obtained to put things right however reputations may never recover.