What is Defamation?
Defamation is a false statement that has been made which harms, or is likely to harm, someone’s reputation. Libel is a defamatory statement that has been made in permanent form, for example, it can be in writing, such as posts on social media or printed in a newspaper, or broadcast. Slander, in contrast, is when a defamatory statement has been made in non-permanent form, such as orally.
Bringing a Defamation Claim
The claimant must show that the following criteria have been met:
1. A defamatory statement has been made
The court will find the natural and ordinary meaning of the words complained of is that which the ordinary and reasonable reader who reads the entire publication would understand the words to mean. The meaning of the words is often referred to as the “defamatory sting”.It must be established that the natural and ordinary meaning of the words would lower the reputation of the claimant and have a substantially adverse effect on the way people would view the claimant.
It is possible for the court to look further and consider that the statement may have an innuendo meaning.
2. The statement refers to the claimant
This can be directly or indirectly.If the claimant is not directly referred to, the general test to consider is whether a reasonable person would understand the statement to refer to the claimant.
It may also be that a person familiar to you would recognise and infer it is referring to you.
3. The statement was published or communicated to a third party
This can include any form of communication, such as speech, writing, or broadcast that has been published by the defendant.
The statement does not need to have been published to a large audience.
4. The statement has caused, or is likely to cause, ‘serious harm’
This requirement was introduced by the Defamation Act 2013 and has increased the threshold for a claim. It must be established that the defamatory statement complained of not only includes words that on the face of it, can cause damage, but that serious reputational harm has been or is likely to be caused. The court can infer serious harm when considering the gravity of the defamatory statement and the extent of publication, this includes reviewing social media reactions and online comments to see the damage made by the statement.
For a company, the serious harm requirement must be met with proof of serious financial loss.
5. The defamatory statement was within one year of the claim commencing.
The limitation period for bringing a defamation claim is only one year, so it is advisable to act expeditiously to protect your reputation.
Norwich Pharmacal Relief
Applications for Norwich Pharmacal Orders against third parties, such as social media platforms, can be used to help identify individuals who have published defamatory material and seek to hide or mask their identity, for example via pseudonymous social media accounts.
Defending a Defamation Claim
The following defences may be available:
If it can be shown that the statement is true, or substantially true, it is a complete defence.
To rely on this defence, the defendant must show that they published the statement derived from their opinion. This goes further in that they need to show it is an opinion that an honest person would hold based on facts that existed at the time.
The defendant must show that the statement was made on a matter of public concern and interest, and the defendant reasonably believed it was in the public interest. An example of this would be an article published exposing corruption of someone holding a position in political office.
There are two types of privilege:
1. Absolute – this could be a statement made in Parliament or in judicial proceedings.
2. Qualified – this could be a statement made by someone where there is a duty to communicate the information, such as the reporting of a public meeting.
Where the privilege is absolute, it is a full defence. Where the privilege is qualified, if it can be shown the claimant acted maliciously when the statement was published, this defence can be overcome.
Remedies
The primary remedies available in defamation proceedings are damages, an injunction, an apology by way of a Statement in Open Court, publication of a summary of the court’s judgment and an order to remove or delete the defamatory statement.
- Compensatory damages are awarded to remedy the claimant’s distress, the injury to their reputation and to vindicate their good name.
- Aggravated damages can be awarded where the defendant’s conduct has added to the claimant’s distress.
- An injunction can be granted, for example to stop the defendant from republishing a defamatory statement.
- In successful cases, the claimant can also seek a Statement in Open Court to set the record straight.
- Publication of a summary of the court’s judgment can be ordered by the court with the terms agreed between the parties.
- The court can also order the removal of a statement, for example if it has been posted online or on a social media platform.
- An offer of amends can be made by the defendant, and this may be advisable where the defendant has simply “got it wrong” and does not intend to defend the defamatory statement.
At Edwards Duthie Shamash, our experienced team of specialist media lawyers can help you navigate the process of bringing or defending a defamation claim.
Please contact our Media Law team for more information: mediateam@edslaw.co.uk.
Meet Our Experts
Legal 500 2024 Hall of Fame, Renowned Media Law Expert
Gerald Shamash brings decades of experience to our team. As a respected figure in the field, Gerald is known for his strategic approach and unwavering commitment to protecting clients’ interests.
Chambers & Partners 2024, Ranked Lawyer in Defamation/Reputation Management
Alex Cochrane is known for his adept handling of reputation management matters. With a focus on the sports and entertainment sectors, Alex brings a wealth of experience to the table. His expertise extends to resolving disputes involving social media platforms and online reputational issues.
