Defamation, Libel & Slander
Myerson are specialists in representing businesses and individuals in defamation, libel and slander claims.
Our litigation team is rated as “top tier” by the independent Legal 500 and you can therefore be assured that you will receive the best possible expert care and advice. We are friendly and approachable, yet our expert solicitors will fight your corner when required. If you have a potential defamatory claim or need advice to defend a defamatory claim, please call one of our expert solicitors now.
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 will generally be actionable only if the claimant can show that it has caused tangible damage. By contrast, libel is actionable where harm is proven or is likely to have been caused.
The 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. There is no single definition of what constitutes a defamatory statement. 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.
Furthermore, a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the claimant’s reputation. Harm to the reputation of a body that trades for profit is not “serious harm” unless it has caused or is likely to cause the body serious financial loss. The “serious harm” requirement contained in the Defamation Act 2013 builds upon a number of cases which decided that it was necessary for a “threshold of seriousness” to be reached before a statement would be considered defamatory. The purpose of this threshold is to avoid the Courts being troubled with complaints of a trivial nature that do not truly engage rights of reputation, for example, where the publication was of limited extent or could be described as tittle-tattle.
It will be necessary for claimants in a defamation claim to establish that serious harm has been or is likely to be caused. If serious harm is in issue then claimants will have to gather together the necessary evidence to overcome this hurdle.
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.
The claimant in any defamation claim must also prove that the words complained of were published about him/her. This is likely to be straightforward if the claimant is named or clearly identified. If identification or reference is disputed, the general test is whether a reasonable person would understand the words to refer to the claimant. Whether the publisher of the words complained of intended to refer to the claimant is irrelevant. Identification of the claimant can sometimes be decided by the context of the words complained of.
An action for defamation is a personal action, meaning that only the person who believes they have been defamed can bring proceedings. Generally speaking, a defamation claim cannot be assigned or brought on someone else’s behalf (save where the person defamed is a child when a litigation friend can represent the child at court). As a result of this, defamatory statements regarding a deceased person are not actionable regardless of how malicious the defamatory statement is. This also applies if a person commences legal proceedings but then dies before a final ruling is given.
It is also important to note that the Defamation Act 1996 provides that a defamation claim must be brought within 1 year. This time limit runs from the date on which the cause of action accrued, that is, the date of publication of the defamatory statement. The Court does however have discretion to disapply this time limit in certain circumstances and if the Court deems it equitable to do so given the circumstances of the case.
Defamation claims can arise in the workplace. In an employment situation, a case for defamation is likely to succeed only if the defamatory words causes you to lose your job or destroys your reputation to an extent it will be difficult for you to find future employment. The latter is more difficult to prove. Also, a claimant needs to prove that the alleged defamatory comments made directly concern them. Therefore, any defamatory statement regarding an entire department or team is unlikely to give rise to a successful action in defamation.
If you believe a work colleague has defamed you, do not accept an apology as this can amount to consent. Instead, contact our specialist defamation solicitors for advice on the best course of action to take.
Defending a defamation claim
There are a number of defences available in defamation proceedings. They are as follows:
1. 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.
2. Honest opinion. This defence is potentially available if three conditions are met –
- the statement complained of is a statement of opinion,
- the statement indicated the basis of the opinion and
- 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.
3. Publication on a matter of public interest. It is a defence to a defamation action where the defendant can show:
- that the statement complained of was, or formed part of, a statement on a matter of public interest; and
- that the defendant reasonably believed that publishing the defamatory statement was in the public interest.
4. 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.
5. 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.
6. 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.
If the claimant is successful in proving defamation, there are a number of remedies available as follows:
- 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. 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 claim, 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.
Things to consider
Please note defamation proceedings are expensive. They are not proceedings in which Legal Aid funding can be obtained, nor will this firm be able to offer a conditional fee agreement (also known as “no win, no fee agreements”).
If you wish to pursue a defamation claim you can expect the initial letter of claim to cost from £1,000 plus VAT which will be required to be paid on account.
Take the first step towards resolving your defamation matter. Complete the form below or call us on 0161 941 4000.