Defamation

The importance of reputation

In today’s interconnected world, reputations can be damaged or destroyed by a few mouse-clicks. Defamatory publications can not only be costly, in terms of loss of revenue or opportunity, but can also impact on individuals personally: damaging relationships or preventing them from developing in the first place. They are also often the source of considerable distress and embarrassment. It is necessary to act quickly before a damaging publication spreads.

Our clients instruct us when they cannot afford to let damaging allegations stand. Over the years our specialist defamation solicitors have helped thousands of public figures, HNWIs, professionals and corporates protect their hard-earned reputations.

What is a defamatory statement?

It is the communication of a statement to at least one other person (by any means) that will tend to cause the hypothetical average reader to think less of you. The fact that a statement is untrue, upsetting and/or insulting does not necessarily mean it is defamatory. Additionally, the publication must have caused, or be likely to cause, “serious harm” to your reputation. In a defamation claim the burden is on the claimant to prove that a statement has been read and that serious harm has been suffered or is likely.

What does ‘serious harm’ mean?

This is constantly being debated by lawyers and judges. The threshold is relatively high. Serious harm will depend on all the circumstances of the publication. If a defamatory statement is not read by many individuals or unlikely to be taken seriously then the test may not be met.

What is the difference between libel and slander?

Libel is defamation in a permanent form (e.g. written), slander is temporary (e.g. spoken). With some exceptions, it is normally necessary to prove actual loss to bring a slander claim, whereas in libel claims you will generally automatically be entitled to compensation (provided that the ‘serious harm’ test is met).

Can you defame someone accidentally?

Yes. A defendant’s intention is generally irrelevant. The real issue is what the average ‘reasonable reader’ would have understood the words to mean and whether they would cause reputational harm. You can accidentally defame someone by being careless in what you say. You may also be liable for simply repeating someone else’s defamatory statement if your republication causes the claimant harm.

Can a company bring a claim for defamation?

Yes, but a party that is trading for profit must additionally prove that the statement has caused, or is likely to cause, serious financial loss.

What defences can be raised?

A number of defences may apply in defamation proceedings. These include: ‘truth’, ‘honest opinion’, ‘publication on a matter of public interest’, ‘absolute privilege’, and ‘qualified privilege’. We will advise you on the applicability of any defences in consultation.

What is the ‘presumption of falsity’?

In English defamation law, it is presumed that a defamatory statement is false. This means there is an evidential burden on a defendant to prove it is “substantially true”.

What is ‘privilege’?

Certain statements, for example all statements/allegations made in parliament, in court or to the police, are said to have been made on an occasion of ‘absolute privilege’. Any defamation claim will fail, even if the statements/allegations were false and malicious (see our article here). There will be other scenarios where statements are said to have been made on an occasion of ‘qualified privilege’. For example, a report by an employee to a line manager. Here ‘qualified privilege’ provides a defence to a defamation claim unless the claimant can show the defendant acted maliciously (see our article here).

What is ‘publication on a matter of public interest’?

This is a statutory form of qualified privilege that provides protection for publications on matters of public interest (e.g. responsible journalism). The statement (or part of it) must relate to a matter of public interest and the defendant must reasonably believe that publication is in the public interest.

What is ‘honest opinion’?

This defence protects reviewers, critics and commentators (whether professional or amateur) expressing honestly held opinions. It is a complicated defence. In order for the defence to succeed the defendant will need to show that the statement is an honest expression of an opinion held and one that could be held based on true facts or a privileged statement. The defence does not apply to assertions of fact dressed up as opinions. Statements made by a defendant who does not genuinely hold the opinion are not covered by this defence, but it can often be very difficult to establish this on evidence.

What is the time limit for bringing a defamation claim?

One year from the date of the publication. This time limit will only be disapplied in exceptional circumstances. The Court expects defamation claims to be brought quickly if genuine reputational harm has been suffered.

Can I sue a search engine or an online platform?

Only in certain circumstances.  We will be able to advise you on the viability of such a claim.  We acted for the claimant/appellant in Tamiz v Google Inc [2013] EWCA Civ 68, which is the only time the Court of Appeal has considered the liability of internet service providers for libel.  The Court held that Google Inc could be liable as publisher at common law in relation to its Blogger platform.  Our summary of the judgment can be found here.  Since the judgment, the inception of sections 5 and 10 of the Defamation Act 2013 means that in certain cases genuine intermediaries can never be liable in defamation.

Additionally, following the decision of the European Court of Justice in Google Spain SL, Google Inc. v Agencia Espanola de Proteccion de Datos (AEPD) and Mario Costeja Gonzalez (Case C-131/12) it may be possible to sue search engines under the UK General Data Protection Regulation (‘UK GDPR’) or the Data Protection Act 2018 (see our ‘Right to be Forgotten’ page here).

Finally, we regularly make defamation complaints to intermediaries, on behalf of clients, who will often consider removing or delisting content/links on a voluntary basis.

What if I do not know who the author of a defamatory statement is?

If someone else does (e.g. a telephone/internet company/online platform) we may be able to apply to the Court on your behalf to obtain a disclosure order (technically known as a Norwich Pharmacal Order)  See our page here.

What is the first step in bringing a defamation claim?

If there is a viable claim, the first steps will normally be the preparation of a Pre-Action Protocol Letter of Claim.  To do this we will need to review the material complained of, other relevant documentation and to take your detailed instructions.  We will then prepare and send a formal Letter of Claim to the defendant setting out your case and your requirements.

What if a Letter of Claim does not resolve the matter immediately?

Where liability is not accepted or a case is not settled, ultimately a claim should be issued in the Media and Communications List in the King’s Bench Division of the High Court.  This may prompt settlement discussions.  If the claim does not settle the matter will be set down for a trial normally 12-18 months after the issue of the claim.

Do you act for defendants?

Yes.  As can be seen from our list of reported cases, we have an excellent track record of defending defamation claims.   For more information, visit our page on defending defamation claims.