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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 or a business. 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.

serious harm

  • A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.
  • This requirement was introduced in the Defamation Act 2013 which came into force on 1 January 2014 and is liekly to increase the number of cases where the claimant decides not to make a claim or the defendant refuses to offer any remedy or apology.
  • It is likely to be difficult to show serious harm in the following situations:
  1. Where the claimant has a bad reputation anyway
  2. There is limited publication
  3. The meaning is "pub talk" or borderline vulgar abuse
  4. The statement is criticism of goods or services
  5. The statement was quickly clarified, retracted or an apology was made so that any damage was shortlived.

 

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.

bodies that trade for profit

  • Harm to the reputation of a body that trades for a profit is not "serious" harm unless it has caused or is likely to cause the body serious financial loss

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.

truth

  • 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.
  • 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 opinion

  • 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 truth (instead of saying justification) and qualified privilege may be defeated if malice is proved on the part of the publisher.

public interest

  • It is a defence to show that a statement was, or formed part of, a statement on a matter of public interest and the defendent reasonably believed that publishing the statement complained of was in the public interest.

 

For further information, please contact:

Jill Bainbridge, head of Blake Lapthorn's Intellectual Property team on 023 8085 7160 or at jill.bainbridge@bllaw.co.uk.