Defamation involves the publication of a statement that adversely affects a person’s reputation. It is an umbrella term for both libel and slander. Libel primarily concerns written statements, in printed publications or online, whereas slander primarily involves spoken words.
With the ever-increasing use of social media, defamatory comments can be published and disseminated to multiple recipients with relative ease and little thought. Social media posts can have a ‘snowball’ effect, potentially reaching millions of people around the world in a matter of seconds.
For most people when defamation is mentioned they think of high-profile cases involving well known personalities suing the press. There are many famous examples, involving celebrities such as Sean Penn, Kate Winslet, Cliff Richard and most recently Johnny Depp.
But this area of the law is relevant to people from all walks of life and we can deal with defamation cases across a very wide range of contexts.
According to figures from Thomson Reuters, in 2017, celebrity claims only accounted for six per cent of reported defamation cases in the UK.
Recent cases have involved claims between teachers and pupils’ parents, husbands and wives, and between businesses and their employees.
What is the law on defamation?
The Defamation Act 2013 is the primary piece of legislation governing this area, supplemented by earlier legislation and decisions made by the Courts.
As well as a defamation claim, there may be other causes of action such as a claim for malicious falsehood.
How can I advance a defamation claim?
To bring a successful defamation claim, the statement must be shown to be one that tends to lower the claimant in the estimation of right-thinking members of society.
This means that the meaning of the statement or ‘defamatory sting’ must be closely and critically examined at the outset.
The claimant must be named or clearly identified and the statement must have been published to a third party or third parties.
There is also a requirement that its publication has caused or is likely to cause serious harm to the reputation of the claimant. This is designed to avoid trivial claims being brought before the Courts.
Defending a defamation claim
We can also act for defendants in defamation claims and there are a number of defences available.
The four main defences are:
- Truth, which is a complete defence if the defendant can show that the statement complained of was true or substantially true.
- Honest opinion, which was previously termed ‘fair comment’ although this would not be available if the claimant can show that the defendant acted maliciously.
- Public interest, which is available if the statement was, or formed part of, a statement on a matter of public interest and the defendant reasonably believed that publication was in the public interest having regard to all the circumstances of the case.
- Privilege, which covers situations in which individuals have the right to make certain types of statements in specific circumstances. An example would be statements made in the context of judicial proceedings. Again, this offers a complete defence.
The Pre-Action Protocol
Defamation claims are governed by a Pre-Action Protocol, which offers a clear framework to the parties to move the case forward. The Protocol promotes an early exchange of information and encourages the parties to engage in alternative dispute resolution to avoid the case going through the courts if possible.
How are defamation cases settled?
The exact nature on how defamation claims are resolved varies from case to case and depends on whether the parties agree terms of settlement or whether the matter is resolved by the Court.
If the parties agree terms, then this can often involve an apology and a correction combined with a financial payment as compensation and/or in respect of the claimant’s legal costs and expenses.
The Court has the power to award damages, make an injunction and publish a summary of the judgment and can also order the removal of the defamatory statement.
However, the Court does not have the power to require the defendant to correct the defamatory statement or declare the statement to have been false.
The need for speed
Court proceedings for defamation must be brought within one year of the date of the allegedly defaming statement being published.
This is known as the limitation period. While the Court has discretion to allow a claim to proceed after the limitation period, it will only grant permission in very limited circumstances.
For the claimant, it is usually very important to resolve the issue as soon as possible. They often seek an immediate correction and/or apology to try to limit the damage and to help restore their reputation.
This all means that there is a real need for speed when dealing with these types of claim.
The best way to proceed with a defamation claim will depend on the facts of any particular case and urgent legal advice should be sought as soon as possible.
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