In today’s interconnected world, reputations that have taken years to establish can be damaged within minutes by a few mouse-clicks. Defamatory publications can not only be costly, in terms of loss of revenue/employment opportunity, but can also cause considerable distress and embarrassment. It is therefore vital to act quickly before a damaging publication spreads. As experts in English libel law, our defamation solicitors are well-versed to help.
What is a defamatory statement?
It is the publication of a statement to at least one other person that will tend to cause the reader to think less of you. The fact a statement is untrue and/or upsetting/insulting does not necessarily mean it is defamatory. Additionally, since 2014, 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 a statement has been read and serious harm suffered.
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 normally 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 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 (e.g. by re-tweeting a defamatory statement) if your republication causes the claimant harm.
Can a company bring a claim for defamation?
Yes, but it must additionally prove that the statement has caused, or is likely to cause, it 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’.
What is the 'presumption of falsity'?
In English defamation law, it is presumed that a defamatory statement is false. The burden is 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 occassion 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 occassion of 'qualified privilege'. For example, a report by an employee to a line manger. Here 'qualified privilege' provides a defence to a defamation claim unless the complaint 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 believe that publication is in the public interest.
What is 'honest opinion'?
This defence protects reviewers, critics and commentators (whether professional or amateurs) 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 a fact 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.
What remedies are available if I succeed?
The most common 'relief' the Court can order is:-
- Damages (compensation for injury to reputation, to vindicate the defamation, and for distress/injury to feelings)
- An injunction prohibiting the republication of similar statements
- Legal costs
However, most cases settle and solicitors are free to negotiate terms of settlement. These commonly include:-
- Damages (compensation)
- An undertaking (legal promise) not to republish similar statements
- An apology/retraction. This may be private, public or a statement in the High Court
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  EWCA Civ 68, which was the first time the Court of Appeal 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.
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 General Data Protection Regulation ('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. See our page here.
What is the first step in bringing a defamation claim?
Instructing us to prepare 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 Queen'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. We have an excellent track record of defending defamation claims.
Why should I instruct Brett Wilson LLP
Defamation can be notoriously expensive. We are confident our charges represent excellent value for money, particularly for a specialist field practised by relatively few solicitors. Our work is of the highest standard. We are well-respected by media practitioners and listed in the Legal 500 as a leading firm in the field of defamation law and privacy law in addition to every solicitor in this department being recommended by the directory. The prestigious Chambers & Partners directory has additionally ranked the firm for defamation and reputation management work, alongside individually recommending Iain Wilson, Max Campbell and Alex Cochrane. Most importantly, we achieve positive results for our clients and excellent feedback.
Litigation can be costly. Therefore at the outset of your case we will conduct a cost benefit analysis with you (for example, if your case succeeded would your opponent able to pay any judgment or costs order?) We will talk you through this process. We offer honest and pragmatic advice to our clients. We will always consider alternative options, including other causes of action (such as harassment and the misuse of private information) and approaching intermediaries.
What does it cost?
Like most law firms, we charge by the hour and our costs will depend on the factual and legal complexity of your case and the volume of material that needs to be considered. In a relatively straightforward case the cost of reviewing/analysing the material/the legal position, taking detailed instructions, advising and preparing a substantive Letter of Claim or Letter of Response will be in the region of £1,000-2,500 plus vat.
The cost of issuing court proceedings and taking a matter to trial will vary considerably depending on the case. We will talk through the likely costs of proceedings with you in person.
We are unable to analyse cases/review material free of charge. However, we offer preliminary consultations where we review material, advise on the merits of a prospective claim and talk through relevant practical/legal issues. A consultation will help you understand the legal and practical issues relating to your case and allow you to make an informed decision about what action to take. These consultations are very popular and from the feedback we get clients find them very helpful. The cost of a consultation will depend on the factual and legal complexity of the matter and, in particular, how much paperwork you require us to consider ahead of the meeting. In relatively straightforward matters, the cost may be as low as £300 plus vat.
How do I instruct Brett Wilson LLP?