In order to bring a claim for defamation, a claimant must prove
that the defendant has published a defamatory statement to a third
party which refers to him.
A defamatory statement is one which makes people think worse of
someone. This would include allegations of criminality, dishonesty,
insolvency, lack of integrity or sharp practice and personal
morality.
Defamation is the generic term for libel and slander:
- libel is a defamatory statement in permanent form; in writing,
electronic media, broadcasts and pictures
- slander is a defamatory statement in temporary form, generally
spoken but can include conduct and gestures
key elements
identification
- The claimant must prove that the defamatory statement is
understood to refer to him. A claim may still be brought even if
the claimant has not been specifically named. It is sufficient that
the claimant has been referred to and can be identified.
publication
- The statement must be communicated to another person or
persons. This can be by letter, email, on the Internet or by
placing something in a public place.
- An online publication takes place in the jurisdiction
where the defamatory material is downloaded not where it is
created.
defences
limitation
- A claim must be brought within one year of the
defamatory statement being published unless there are exceptional
circumstances, when the court may extend that period.
justification
- This is a compete defence if a publisher can prove that a
statement is true or substantially true. A statement is presumed to
be false; the publisher has the burden of proving its truth.
privilege
- In certain circumstances it will be a defence to publish
material which is defamatory.
- Absolute privilege is a complete bar to an action for public
interest reasons. This would include statements made in judicial
and parliamentary proceedings or for example statements made to
police during criminal investigations which will be protected for
public policy reasons.
- Qualified privilege applies where the publisher has a
legitimate duty to publish information to a third party and the
third party has a legitimate reciprocal interest in receiving it,
such as an employment reference or a reply to an inquiry. It also
covers a reply to a verbal or written 'attack' on someone's
character, where the person 'attacked' has a legitimate interest in
defending himself and so long as the reply to attack is relevant
and proportionate to the original attack.
- Reynolds qualified privilege is a distinct form of qualified
privilege. It covers media publications on matters in the public
interest where the publisher cannot actually prove the truth of a
story. In order to rely on this defence, a publisher must be able
to show that the publication is in the public interest, that it is
necessary to include the defamatory statement or statements and
that the publication has been made responsibly and fairly.
- Reportage is a form of Reynolds qualified privilege which
allows for neutral reporting without liability for repetition of
defamatory allegations. The report must be fair and neutral (ie
stating the facts without adoption of the truth of any
allegations), in the public interest and published fairly and
responsibly.
- Fair and accurate reports of certain proceedings, documents and
statements (eg legislative, judicial or inquisitorial), are
protected by qualified privilege where the reports are
contemporaneous and clearly in the public interest. This privilege
does not apply only to the media and newspapers; anyone can rely on
it.
honest comment
- This is a statement of opinion, based on true facts, on a
matter of public interest which a fair-minded person could honestly
hold. The comment must explicitly indicate, at least in general
terms, the facts on which the comment is based. This may include
current affairs publications.
malice
- Means a dominant improper motive for publishing the statement.
Malice will be inferred if a publisher knew the words were false or
was reckless to the truth of them.
- The defences of fair comment and qualified privilege may be
defeated if malice is proved on the part of the publisher.
secondary responsibly
- This defence is available where the defendant is an innocent
disseminator and can show that he has an innocent or secondary role
in publication of a defamatory statement.
- In addition, section 1 of the Defamation Act 1996 provides
a defence to anyone who is not the author, editor or publisher of a
defamatory statement, took reasonable care in relation to its
publication and had no knowledge about the defamatory contents of
the offending publication. This defence is aimed at electronic
media.
