How do you prove a defamation case?

To prove prima facie defamation, a plaintiff must show four things: 1) a false statement purporting to be fact; 2) publication or communication of that statement to a third person; 3) fault amounting to at least negligence; and 4) damages, or some harm caused to the person or entity who is the subject of the statement.

Written defamation is called “libel,” while spoken defamation is called “slander.” Defamation is not a crime, but it is a “tort” (a civil wrong, rather than a criminal wrong). A person who has been defamed can sue the person who did the defaming for damages.

Defamation Defences

You may be able to deploy at least one of these arguments to demonstrate that you were not breaking the law when making your comments:

• Truth
• Honest opinion
• Publication on matter of public interest
• Absolute privilege
• Innocent dissemination.

Truth

Often the most straightforward defence of defamation is to prove that the communication in question stated the truth. This will result in complete and absolute exoneration for the defendant.

Even if the defendant had malevolent intent when communicating the information, and regardless of whether it was in the public’s interest to make it known, the veracity of a claim will still provide a defence.

The burden of proof rests solely upon the defendant. The information that causes the defamation, if damaging, will often be assumed to be untrue until the defendant proves otherwise.

An exception to using truth as a defence is if the information concerned spent criminal convictions, and the claimant can show that the defendant acted with pernicious intent against the claimant. This would contradict the justice system in its attempts to rehabilitate offenders, who after having taken their punishment still have the offence used against them.

Honest opinion

The Defamation Act 2013 has replaced The ‘honest opinion’ defence with the ‘fair comment’ defence. It can be used as a defence to defamation claims if the defendant can show that:

1. that the statement in question was an opinion;
2. that within the statement there was an apparent basis to the opinion; and
3. the statement is one that an honest person could have held.

A person claiming defamation can defeat this defence if they can demonstrate that the author of the statement complained about did not hold the opinion.

Publication on matter of public interest

It is a defence to a defamation claim if the defendant can show that their comments were made regarding a matter which is of public interest, and that they reasonably believed that publishing the statement was in the public interest.

This defence replaces ‘qualified privilege’ with the passing of the Defamation Act in 2013, and can be used by someone who finds themselves in a position in which it seems a necessity, either moral, legal, social, to impart certain information to another who has an interest.

This covers situations where the information is false but may not seem so at the time to the person accused of defamation, and that they had a duty to report it before going into the process of verifying the information.

Absolute privilege

Absolute privilege allows for complete freedom of speech with no fear of being sued for defamation, and is applied to certain, special situations no matter how malicious or false the information is.

All proceedings in parliament and courts in England and Wales are afforded absolute privilege, as is communication between a solicitor and client.

Innocent dissemination

Innocent dissemination is a defence that can be invoked by those who are accused of libel through the publication of the written word or images.

For this defence to be successful the defendant must prove that they had no knowledge that what they published was defamatory, had no reason to believe that the material would contain libel, and also that this lack of knowledge was not due to negligence on their part.

It is a defence generally only open to those who are peripherally associated with the publication of the libellous material; the author, editor or commercial publisher cannot use a defence of innocent dissemination.

It is a defence that may be used by someone such as Internet Service Providers (ISPs) who act as a medium through which potentially libellous material can be published. It also potentially extends to printers or distributors.

In a decision on 12 June, 2019, the UK Supreme Court gave its first authoritative interpretation to the latest development in the legislation in this area, the Defamation Act 2013. The act introduced a new threshold requirement to defamation claims that the claimant has suffered “serious harm” to his or her reputation. In its ruling, the Supreme Court noted that the act brought about “a new threshold of serious harm which did not previously exist”.

In order to succeed in a defamation claim in the UK, a claimant now needs to establish: (i) the “publication” of a statement, (ii) that the statement was about the claimant, (iii) that the statement was defamatory to the claimant, and (iv) that the defamatory statement met the threshold of “serious harm”, that is, that publication of the statement has caused, or is likely to cause, serious harm to the reputation of the claimant.

An additional limb to the “serious harm” test applies where the claimant is a body that trades for profit. Defamation laws in the UK allow not only living individuals but also legal entities to bring claims for the harm caused to their reputation. When such an entity trades for profit, the legislation provides that “serious harm” will only be caused, or be likely to be caused, if the body suffers serious financial loss.

The case before the Supreme Court in which the serious harm requirement was interpreted, was brought against two London newspapers, the Evening Standard and the Independent. The case related to a series of articles published by the newspapers in 2014 about the claimant’s divorce. The Supreme Court concluded that the defamatory articles had caused serious harm to the claimant’s reputation. The Court said that what amounts to “serious harm” is a question of fact which can only be established by considering the impact that a defamatory statement is shown to have. This, the Court explained, depends on a combination of the “inherent tendency” of the words to cause harm and the actual impact or likely impact of the words on the persons the words were communicated to. The Court took the view that account should be taken not only of the damage that claimant’s reputation may suffer in respect of people who already knew him but also the impact on those who may get to know him at some point in the future.

Although the Supreme Court found in the claimant’s favour, the case is seen as a positive step for the media, as the decision confirms that the threshold requirement is a significant hurdle for claimants and a real change to the law.

Limitation Period

In defamation matters, the Claimant only has one year from the date of publication of the defamatory statement to sue for defamation. Although the court does have a broad discretion to extend this period in circumstances where it is equitable to do so.

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