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
- 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.
- A statement is not defamatory unless its publication has caused
or is likely to cause serious harm to the reputation of the
- 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
- Where the claimant has a bad reputation anyway
- There is limited publication
- The meaning is "pub talk" or borderline vulgar abuse
- The statement is criticism of goods or services
- The statement was quickly clarified, retracted or an
apology was made so that any damage was shortlived.
- 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
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.
- 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.
- 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.
- 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
- 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.
- 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.
- 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.