In the digital age, never has our professional reputation been more important.  Thanks to social media, it can be argued that everyone now has a personal ‘brand’.  And as such, like an organisation, we should have the right to protect it.  After all, around 70% of employers use social media to screen candidates during the recruitment process.  But does it follow that a person has the right to protect their reputation or ‘brand’ from defamation?

Defamation of character

When we talk about defamation, we think of a celebrity or member of the royal family suing a major publication.  For example, Oscar-winning actor Geoffrey Rush recently won a defamation case against Sydney’s Murdoch-owned Daily Telegraph.  The judge stated the paper engaged in reckless and irresponsible journalism concerning allegations against Mr Rush of sexual harassment and ordered News Corp to pay more than $850,000 (£465,000) – with the prospect of millions more to the star.

However, defamation also occurs in more mundane settings, including the workplace.

What is defamation?

A defamatory statement is one which injures the reputation of another person: it "tends to lower him in the estimation of right-thinking members of society generally (Sim v Stretch [1936] 2 All ER 1237).

The term "defamation" covers libel and slander.  The difference between the two is libel concerns lasting forms of defamation such as comments on social media, email or in print.  Slander involves representations made orally or with gestures.

Case law and the Defamation Act 2013 sets out the legal principles applying to defamation in England and Wales.  A Claimant must bring an action within 12 months of the alleged defamatory act.

What is defamation of character by a fellow employee?

Slander is only actionable if the Claimant can prove tangible damage.  Under section 1(1) of the Defamation Act 2013, an action for libel can only be brought if the defamation caused ‘serious harm’.  In an employment situation, a case for defamation is likely to succeed only if it causes you to lose your job or destroys your reputation to an extent it will be difficult for you to find future employment (although this is harder to prove).

Also, a Claimant needs to prove that the alleged defamatory comments made directly concerned him or her.  Therefore, a statement regarding an entire department is unlikely to give rise to a successful action in defamation.

Examples of defamation made by an employee

With tools such as Twitter, Facebook, WhatsApp, Slack, and email, it is incredibly easy to make a statement about another employee (or your workplace) which may be viewed as defamatory.  For example, if you have been called into a disciplinary meeting and a colleague sends a message stating the meeting concerned your inappropriate touching of a co-worker, you may have a claim for defamation if the statement causes you serious harm.

How to prove workplace defamation

Proving defamation is notoriously difficult and, as you will see demonstrated below, this area of law is extremely complex.  Therefore, you should take legal advice at the earliest opportunity.  There are several defences available in a defamation case, including:

Truth

It is an absolute defence to a defamation claim to show that a defamatory statement is true. Courts believe a Claimant should not be entitled to recover damages for injury to a reputation they did not deserve to have in the first place. The burden of proof is on the Defendant to prove the statement made was true.

Honest opinion

To succeed in the defence of honest opinion, the Defendant must show:

  • The statement was an expression of opinion,
  • The statement indicates the basis for this opinion, and
  • An honest person could have held the opinion based on:
    • any fact that existed at the time the statement complained of was published; or
    • anything asserted to be a fact in a privileged statement published before the statement complained of.

However, even if these three conditions are met, the defence of honest opinion will not succeed if the Claimant can prove that the Defendant did not hold that opinion.

Public interest

There is a defence if the Defendant can show the statement complained of (or part of it) was a matter of public interest and he or she reasonably believed that publishing the statement was in the public interest. 

This defence would have particular importance in cases involving whistleblowing.

Other defences are also available, such as absolute or qualified privilege, the Claimant consented to the publication, and in the case of a website, innocent dissemination (whereby the Defendant states they did not author, edit, or publish the statement).

In summary

If you believe a work colleague has defamed you, do not accept an apology (this can amount to consent).  Instead, contact a Solicitor specialising in defamation immediately to find out the best course of action to take.

If you need advice regarding Defamation, Libel or Slander, then speak to one of our specialist defamation solicitors who can help explain your available options. You can call us on 0161-941-4000 or alternatively via email lawyers@myerson.co.uk