When a claim is made for defamation the claimant believes that another person has published information about them which is untrue. As a result, the claimant may have suffered damage to their reputation because this information has been published. Furthermore, a defamation claim can be brought by a business or individual who has been subject to ridicule, contempt or hatred.
In the legal system, claims for defamation are dealt with using the Tort of Defamation which aims to address unjustified claims made about an individual. This tort can be divided into two distinct areas; libel and slander. Libel is the publication of permanent material such as written information which is defamatory while slander is the publication of defamatory material which is temporary such as the spoken word.
The nature of defamation will depend on the meaning of the words or actions taken by the defendant. A defamation trial will be heard without a jury unless there are specific instructions from the jury to do so. Usually it is up to a judge to decide whether the words or actions by the defendant would damage the reputation of the claimant.
Within a claim for slander, several elements need to be established;
- An accusation must be made
- Proof of special damage must be provided although there are exceptions to this rule
- The claim must be made against an individual
- The statement made is one that would result in other people thinking less of the individual
Libel on the other hand is not restricted to the written word and the following need to be determined:
- The statement must be made against an individual
- This statement is one that would result in other people thinking less of the individual
Once it has been determined that the claimant has been subjected to either libel or slander, there are various other aspects that need to be taken into consideration.
Serious Harm – In line with Section 1 of the Act from 2013, a new requirement was developed which outlined that the statement must have caused or is likely to have caused serious harm to the reputation of the claimant. Where it cannot be established that the statement harmed the reputation of the claimant, it is not classed as being defamatory.
Serious Financial Loss – Proof must be provided to evidence that the claimant has suffered a serious financial loss as a result of the defamation
When a claim for defamation is proven, the claimant may seek to claim damages from the defendant. Damages usually aim to compensate the claimant for the harm that they have suffered as a direct result of the defamatory statements made by the individual or business. Within a defamation case there are three types of damages that can be awarded; general damages, aggravated damages and exemplary damages.
Injunction – During the claim, the claimant may wish to pursue an injunction which will prevent the claimant from publishing anything further about them which is defamatory in nature. The claimant must be able to prove that the defendant was not acting in good faith. An injunction may be granted on an interim basis.
Who can bring a defamation claim?
There are restrictions on who can make a claim for defamation, with the following groups being entitled to bring a claim:
- Any member of the general population
- Legal Entities
- Trade Unions
There are certain groups of people who cannot make a claim for defamation and these include:
- Political and government bodies
- Unincorporated associations
- Time Limits for Bringing a Claim
Claimants have a period of one year from the time the defamatory material was identified to bring a claim for defamation. Courts are able to exercise their discretion to hear a claim if the case is time barred but this will only be in situations where it is deemed to be reasonable to do so. The subject of the defamatory material should aim to bring a formal claim as soon as possible.
Defences for Defamation
There are several defences for defamation that the defendant can present:
- Truth – This is a full defence to the act of defamation. For it to be successful, the defendant must demonstrate that the information that they published was true. If the defendant can prove this, the onus will be on the claimant to state that it is untrue.
- Opinion – Another defence is that of opinion. This defence is relatively new and it replaces the common law defence of fair commitment. To present a defence of honest opinion the defendant must fulfil three conditions.The first is that the statement must be an expression of opinion. It must also state the reason for holding this opinion and it must be established that it is a viewpoint that any honest individual could hold based on the facts presented at the time. Alternatively, the statement was ‘privileged’ when it was published.
- Privilege – In some situations, privilege can be used as a defence. Where this applies, privilege will aim to balance the human rights of the claimant and freedom of information. If privilege is to be used as a defence, there are two standards that can be applied.The first is absolute privilege which means that libel or slander cannot be successful regardless of any motive or dishonesty. Qualified privilege on the other hand offers a lower level of protection and applies where an individual has published material when they have a legal, social or moral duty or interest to make it to the subject of the defamatory publication. In this instance, the duty and interest test will be applied.This will question whether the public had an interest to receive the information and whether the media had a duty to publish the content.
- Publication in the interest of the public – When this defence is used, it will be applicable to those who are publishing material which they genuinely believe is in the public interest. The defendant must establish several things.Firstly they must demonstrate that the statement related to a public interest matter and secondly the statement was released because it was in the public interest to do so. Section 4 of the legislation will list a number of situations where the court can consider when deciding whether the defendant acted appropriately and in the public interest when publishing the information.
- Innocent Dissemination – The defendant can provide a defence of innocent dissemination provided that they can prove they were not the editor, author or publisher of the statement and they exercised due care and attention in relation to the publication of the material.In addition they may also be able to prove that they did not know and had no reason to believe that their actions resulted in the publication of a defamatory statement.
- Consent – Where the subject of the defamatory material has given their consent for the information to be published, they cannot bring a claim. Nor can they bring a claim if the claimant accepts an apology from the defendant.
- Website Manager – A website manager can defend a defamation claim if they can provide proof that they did not publish the defamatory statement. Nevertheless this is subject to certain exceptions and the defendant may fail if it cannot be established who posted the information, the claimant issued a notice of complaint or the defendant failed to respond to the notice of complaint.
Defamation is a complicated area of law and it is strongly advised that you seek professional legal advice if you believe that you have been subject to a defamatory statement.
About the author:
This article was written by a member of the Expert Answers legal advice team and posted by Lloyd Barrett. Expert Answers provides online legal advice on all aspects of UK Law to users in the United Kingdom.