Defamation of character is concerned with giving legal redress to an individual or organisation that has suffered reputational harm as a direct result of something someone else has written or said.
It is a complex area of law, turning specifically on the facts of the case.
Anyone who believes they have been defamed may be able to sue for defamation, with the aim of seeking an injunction, apology or compensation for the harm caused to reputation.
What is defamation?
Defamation is where a statement is made, either orally or in writing, to a third party, in such a way as to damage, or be likely to damage, the reputation of the subject of the comment.
To be defamatory, the statement must have been false and have caused or intended to cause, others to think worse of the subject.
Defamation can be classed as slander or libel, depending on how the statement was conveyed or published.
What is libel?
Libel is a defamatory statement that is permanent in nature. Libellous statements include written form, such as printed publications or emails, as well as statements made on TV, film or video. Text messages and comments or statements posted on social media would be classed as libel.
What is slander?
Slander covers defamatory statements that are temporary in nature. These are generally conveyed by speech, but may also include gestures or conduct.
The transient nature of the spoken word can make slander more difficult to establish than libel since evidence will be required to show the defamatory statement had been made.
Suing for defamation of character
Whether the subject of the defamatory comment is an individual, a group of individuals or a company, the impact of defamation can be devastating in financial, emotional and reputational terms.
Likewise, an accusation of making a defamatory statement can have extensive repercussions on the person accused.
A claim for defamation will require the victim (claimant) to prove that:
- the statement was made,
- that it was false,
- that it identifies or refers to the claimant, and
- that it was intended to cause harm to the claimant’s reputation.
Given what is at stake and what is involved, the legal process of suing for defamation is complex and the threshold to bring a claim for defamation is high.
For individuals, injury to feelings is not sufficient harm. Lasting damage to personal reputation must be shown.
For companies, the serious harm requirement must equate to serious financial loss.
Who do you claim against?
Any individual, business or other legal body involved in publishing the defamatory material can be sued. This could include the actual author or person who made the statement, the editor or publishing company.
In some cases, ‘distributors’ of defamatory material can also be sued, including website owners and ISP, although the operators of websites are given certain protections if they were not responsible for publishing the defamatory material on their website.
It is also possible to sue for defamatory statements made on social media, provided the threshold of causing or being likely to cause serious harm to reputation has been met.
How do you prove defamation?
To make a claim for defamation, the claimant will need to evidence three key elements:
Any individual who brings a case of defamation must prove that they are understood to be the subject of the defamatory statement. This means the subject does not have to have been named within the statement, if it can be shown that they are identifiable.
They must also prove that the ‘audience’ of the statement believes that the statement is about them.
It is not necessary for the individual to have been named in the statement, as long as they have been referred to in connection with the statement and they can be identified.
For a statement to be defamatory, it must be seen to have caused, or be likely to cause serious harm to the reputation of the individual it refers to.
This requirement of ‘serious harm’ was introduced in the Defamation Act 2013, and later court rulings have clarified the degree that meets this standard.
The decision on whether the element of serious harm is present in each individual case will be down to the court to decide but situations where it may be difficult to prove serious harm include, but are not limited to:
- where the individual affected already has a ‘bad’ reputation
- where the reach of the defamatory statement was very limited
- where the statement criticises services or goods
- where the statement was withdrawn, corrected or an apology was made
In the case of a defamatory statement affecting an organisation, serious harm can only be proved if the statement has caused, or is likely to cause, the organisation serious financial loss.
The defamatory statement must be expressed or conveyed to another person or persons.
In the case of slander, this would be by verbal communication, for instance a comment made at a board meeting.
In the case of libel, this refers to a statement made in permanent form, such as a letter, a comment made on social media, or an email.
Is there a time limit to bringing a claim for defamation?
A claim for defamation has to be brought within one year of the date of the defamatory statement being made. Victims of defamation therefore have to act quickly if they wish to pursue a claim.
Making a claim near to the time limit is generally looked upon unfavourably by the court as parties are expected to endeavour to resolve the issue before it comes before the court, and can impact any eventual award for damages.
What are the defences against a claim of defamation?
A number of defences could be available to a claim for defamation.
There may be process issues, for example, as all claims for defamation must be made within one year of the statement being made, if the year has lapsed, then the court may see fit to deny the claim.
Other defences look at the nature of the claim itself:
If the publisher of the statement can prove that the statement is true, then the court will deem that it is not defamatory. The responsibility to prove this, however, is with the defendant.
Honest opinion (previously known as ‘fair comment’)
The defendant must prove that this was an honest statement of their own opinion, supported by information and facts that existed before or at the time that the statement was expressed or published.
This defence is intended to create a balance between the human rights of those who are the subject of defamatory statements, with the importance of freedom of information.
When an individual has a duty or interest to make information known to another individual who has an equal interest to receive that information, and the conveying of that information or communication is not motivated by malice, then this may be covered by the defence of privilege.
This could be the reporting of a crime, or providing information in relation to a crime, to the police, for instance.
Publication of material for public interest
For this defence to be accepted, the defendant must show that the statement involved a subject matter that was of public interest, and that publication of the statement was in the public’s interest, for instance, evidence heard in court.
Other defences may also be available, depending on the circumstances of the claim. For example, if it can be proved that the subject of the statement gave their consent for the publication of the alleged defamatory statement, or that they had already received an apology from the defendant for the publication of the statement, they cannot sue for defamation.
If the operator of a website can prove that they did not personally post the defamatory statement, they can offer this as a defence. However, this can only be used if the website operator can identify the person who did post the statement, or if they removed the statement from their website in accordance with the claimant’s request.
What are the remedies for a claim of defamation?
Where a claimant wins their claim for defamation, they would usually be awarded compensation. The level of damages will be determined by the court against a number of factors including the severity of the defamation and the degree of harm caused by the defamatory statement.
The court will take into consideration the victim’s feelings, the seriousness of the defamation, and the reach and form of the publication. Mitigating factors will also be considered when assessing the level of damages to be awarded.
The court can order for the removal of the defamatory statement.
An injunction can prevent any further publication of the defamatory statement, provided the claimant can prove the statement was made with malicious intent.
For some parties, an apology from the defendant will be a critical outcome. As such, settlements usually include the defendant agreeing to publish an apology as well as paying compensation.
The court however cannot order a defendant to apologise or to retract their statement, although it can compel the defendant to publish a summary of the judgement in favour of the claimant. Vindication for the claimant is usually deemed to be achieved through the award of compensation.
Why seek legal advice
The law relating to defamation is complex and bringing or defending a claim will require specialist legal knowledge.
Take guidance from an experienced defamation legal adviser on your individual case and circumstances to understand all of the options open to you and to ensure your case is most effectively represented.