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Defamation covers both libel and slander. Libel is a more lasting form of publication such as print, online or broadcasting. Slander is more transient i.e. spoken words or gestures. Slander is generally only actionable if a claimant can show that the slander has caused tangible damage. By contrast, in libel, damage is presumed.
The recent Defamation Act 2013 made significant changes to the law of defamation and will apply to all libellous and slanderous comments made on or after 1 January 2014. The Defamation Act 1996 also remains largely in force with the most important provisions in that Act relating to the offer of amends defence and statutory privilege (see below). The law of defamation also has to accommodate the provisions of the European Convention of Human Rights (ECHR) and in particular the fact that an individual’s right to reputation is part of the Article 8 right to respect for private life. The Article 8 right also has to be balanced with the right to freedom of expression enshrined in Article 10.
The law of defamation also overlaps with other laws such as malicious falsehood (i.e. malicious false statements), breach of confidence, misuse of private information, harassment, breach of data protection laws and infringement of intellectual property rights.
Establishing a defamation claim
In order to establish a claim in defamation, a claimant must establish that the words complained of are defamatory of him. The assessment that is often used by the Courts is whether the statement lowers the claimant in the estimation of right-thinking people in society. Whether the words are defamatory will depend on the precise words used. A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the claimant’s reputation.
A claimant in a defamatory claim must also establish that the words complained of have been published to a third party and that the defendant published or is responsible for the publication. In the case of books, newspapers and television programmes this may be easy to establish.
The meaning of the words complained of is central to any defamation claim. Whilst a publication may be understood in many different ways according to who reads or watches it, what the Court will do is find a single or “right” meaning of the words complained of. In other words, the Court will look at what the meaning of the words complained of would mean to an ordinary and reasonable person.
Defending a defamation claim
There are a number of defences available in defamation proceedings. They are as follows:
- Truth. It is an absolute defence to a defamation claim to show that the defamatory statement is true. This is on the basis that a claimant should not be entitled to recover damages for injury to a reputation he did not deserve to have in the first place. The burden of proof is on the defendant to show that the statement is true as there is a legal presumption in favour of the claimant that the defamatory statement is false.
- Honest opinion. This defence is potentially available if three conditions are met –
(1) the statement complained of is a statement of opinion,
(2) the statement indicated the basis of the opinion and
(3) an honest person could have held the same opinion based on any facts or assertions existing before or at the time the defamatory statement was published.
- Publication on a matter of public interest. It is a defence to a defamation action where the defendant can show
(1) that the statement complained of was, or formed part of, a statement on a matter of public interest and
(2) that the defendant reasonably believed that publishing the defamatory statement was in the public interest.
- Absolute and qualified privilege. Certain occasions, such as Court proceedings, are considered sufficiently important to preclude the possibility of defamation proceedings even where untrue and malicious statements are made.
- Peer-reviewed statements in scientific and academic journals. To rely on this defence, a defendant must show that the statement complained of relates to a scientific or academic matter and that before the defamatory statement was published, an independent review of the statement was carried out by somebody with expertise in the scientific or academic matter concerned.
- Internet defences. Internet intermediaries are afforded some protection under the Defamation Acts 1996 and 2013 and the E-Commerce Regulations 2002. Essentially, those who are innocent disseminators of the relevant defamatory material can defend defamation Court proceedings brought against them.
- Damages. This is the primary remedy in defamation actions. Damages are normally awarded to remedy the claimant’s distress and any losses flowing from the defamatory statement. Compensatory and punitive damages may also be available if aggravating circumstances exist or the defendant is guilty of misconduct.
- Injunctive relief. The current position is that interim injunctions to restrain a defendant from publishing a defamatory statement pending a trial are not usually granted in defamation cases. However, injunctions are often granted to restrain further or future publication of a defamatory statement where there is a risk that the defendant may continue to publish the words complained of.
- Summary of Court’s judgment. Where a claimant is successful in a defamatory action, the Court has the power to order the defendant to publish a summary of the Court’s judgment.
- Order to remove statement or cease distribution. The Court has the power to order the operator of a website on which a defamatory statement is posted to remove it. The Court can also order any person who was not the author, editor or publisher of the defamatory statement to stop distributing, selling or exhibiting material containing the defamatory statement.
- Offer of amends. This is a statutory procedure available to defendants who have made an innocent mistake and who are happy to provide an offer of amends in writing and pay the claimant a reasonable amount of compensation and legal costs.