Out-Law Guide 11 min. read
09 May 2023, 11:06 am
There are two different types of civil claims for defamation:
A claimant needs to show that the statement complained of:
As defamation is a tort of strict liability, there is no need for the claimant to establish that the defendant had an intention to defame.
Since the introduction of the 2013 Defamation Act, (DA 2013), which came into force on 1 January 2014, claimants must now also demonstrate that the publication of the statement caused, or is likely to cause, serious harm to their reputation. In the case of bodies trading for profit, the serious harm to its reputation needs to have caused, or be likely to cause, serious financial loss.
The meaning of "defamatory" is not defined in DA 2013, but case law has established that a statement is defamatory where it lowers the claimant in the eyes of right-thinking members of society, or adversely affects the attitude of other people towards the claimant. Whether words are defamatory will depend on the precise words used as judged against the standards of society generally at the time of publication - although some statements will always be defamatory, such as "X is dishonest".
From the outset of a defamation claim, both parties will assert what they consider to be the natural and ordinary meaning of the words complained of: in other words, what ordinary people would have reasonably understood the words to have meant using their general knowledge and common sense.
Claimants are likely to argue that the words complained of convey the most serious imputation, to support their claim that the words are defamatory. Defendants are likely to argue a less serious imputation, which they might be able to establish as being true, thereby providing a defence to a defamation claim as outlined below.
There must, however, be a single meaning attributed to the words complained of, against which the claim for defamation, and any potential defence of truth, is to be judged. This is known as the 'single meaning rule'. The meaning of the words complained of is now often always determined by the court as a preliminary issue. In 2019, the judge in Koutsogiannis v Random House Group provided a useful summary of the court's likely approach to assessing meaning.
If this is disputed, the test is an objective one: would a reasonable person have understood the words to refer to the claimant? Whether the publisher intended to identify the claimant is irrelevant.
The claimant must show the words complained of have been published to a third party by the defendant, or that the defendant is responsible for the publication. There is no presumption of publication, although it is likely to be inferred in many scenarios such as books, newspapers, TV programmes, public broadcasts and popular websites.
Actions must be brought against the author, editor or publisher of the words complained of - as defined in section 1 of the 1996 Defamation Act (DA 1996) - unless the court is satisfied that it is not reasonably practicable for an action to be brought against them. In some circumstances, secondary publishers who assist in making defamatory statements available to third parties (e.g. printers and media proprietors) can be liable for defamatory material alongside the original author.
Since the introduction of DA 2013, a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant. Harm to the reputation of a body that trades for profit is not "serious harm" unless it has caused or is likely to cause the body serious financial loss.
In 2019, the Supreme Court confirmed that this new requirement for serious harm raised the threshold of seriousness established in pre-2013 case law. It also required the seriousness threshold to be determined by reference to the actual facts about the impact of the words complained of and not merely their meaning.
Even if a claimant is able to prove that all of the above elements are satisfied and that the statement is defamatory, a defendant may have a defence to a defamation claim.
DA 2013 introduced the statutory defence of truth, replacing the common law defence of justification. Section 2 of the Act provides a complete defence if the defendant can show that the imputation conveyed is “substantially true”. It is not necessary to prove the truth of every detail - just the sting of the allegation. As mentioned above, the natural and ordinary meaning of the words complained of is important, as it decides exactly what 'sting' the defendant must prove to be substantially true.
The legal presumption, which works in favour of the claimant, is that a defamatory statement is false. It is therefore for the defendant to prove that the statement is true.
The High Court helpfully summarised the key principles that apply to a defence of truth in the 2019 case Turley v Unite the Union.
DA 2013 introduced the statutory defence of honest opinion, replacing the common law defence of fair comment. Section 3 of the Act provides a defence if the statement complained of:
The maker of the statement need not know the fact upon which an honest person could have held the opinion. Nor must the opinion concern a matter of public interest, as was required by the previous common law defence of fair comment. However, if a claimant can show that the defendant did not hold the opinion, the defence will be defeated.
Section 4 of DA 2013 replaced the common law defence of responsible publication - known as the 'Reynolds defence' - with the defence of publication on a matter of public interest. There are two limbs to the defence, which requires the defendant to show:
What is in the public interest is potentially very wide, including any matters that touch on the public life of the community, although it needs to be more than simply newsworthy. Matters relevant to assessing a defendant’s reasonable belief include attempts made to verify the truth of what is being published, the nature of the sources of information and the extent to which the claimant was given an opportunity to respond or comment.
The court must have regard to all the circumstances of the case in determining whether the defendant has satisfied the requirements above and make allowance for editorial judgment in determining whether it was reasonable for the defendant to believe that publishing the statement complained of was in the public interest. This defence is available whether the statement complained of was one of fact or opinion.
DA 2013 specifically makes allowance for a neutral account of a dispute to which the claimant is a party, without taking steps to verify the truth of the allegations reported - previously known as a reportage defence. The court should disregard any omission by the defendant to verify the truth of the allegations reported when assessing whether it was reasonable for the defendant to believe that publishing the statement complained of was in the public interest.
There are a number of defences available to internet intermediaries.
It is also worth bearing in mind that the court does not have jurisdiction over a defamation claim brought against a person who was not the author, editor or publisher of the statement complained of unless the court is satisfied that it is not reasonably practicable to bring a claim against the author, editor or publisher. A publisher is defined in DA 1996 as being “a commercial publisher, that is, a person whose business is issuing material to the public, or a section of the public, who issues material containing the statement in the course of that business”.
Potential claimants are prevented from bringing defamation proceedings in certain situations, where the occasion on which the statements were made is considered sufficiently important to impose such a restriction. This applies if there are clear public policy reasons for ensuring that there are no limits on the freedom of speech. Such situations include statements made in the course of judicial proceedings, parliamentary proceedings or papers, and contemporaneous reports of judicial proceedings.
There are two types of qualified privilege: statutory qualified privilege and common law qualified privilege.
Statutory qualified privilege covers the publication of any fair and accurate report or statement on a matter of public interest mentioned in Schedule 1 of DA 1996 as amended by section 7 DA 2013. This defence can be defeated if there is evidence that the publication was made with malice. Examples of statutory qualified privilege include:
The defence of common law qualified privilege covers statements made where there is a reciprocal relationship of duty, including a social or moral duty, and interest between the person making the statement and the person receiving it. Examples include:
This defence also covers statements made to protect a legitimate interest, such as to defend oneself from a false accusation, provided the statements were made in good faith a relevant to the issues.
DA 2013 extended qualified privilege to cover peer-reviewed statements published in scientific or academic journals.
Proof of special damage, meaning financial loss, is required for slander claims, unless the allegation falls within two categories: an imputation that the claimant has committed a criminal offence punishable by imprisonment; or where the words are calculated to disparage the claimant in any office, profession, calling, trade or business carried on by him at the time of publication.
Compensatory damages aim to compensate for damage to reputation, vindicate the claimant’s reputation and take account of the distress, hurt and humiliation which the defamatory publication caused. This assessment necessarily involves a subjective element, and factors relevant to this assessment include the gravity of the allegation, the extent of the publication and the behaviour of the defendant, which may be aggravating or mitigating.
Exemplary damages may be available where a publisher knew, or was reckless as to whether, they were committing an offence and decided to publish anyway, as the gain outweighed the potential loss.
Following case law, it is very unlikely that an interim injunction will be granted to a claimant if a defendant states his intention to rely on a substantive defence. Final injunctions may be available to prevent further or future publication if the claimant is successful at trial.
The court will grant a final injunction where it is satisfied that the words complained of are injurious to the claimant and there is reason to believe that the defendant may publish them further. For example, in April 2022, the High Court concluded that it was "necessary and appropriate" to grant a final injunction to restrain the defendant from further publishing the libels or further processing of the claimant's personal data.
Where a court gives judgment for the claimant in an action for defamation the court may order the defendant to publish a summary of the judgment.
As an action for defamation aims to protect reputation, the remedies which a claimant is likely to be most interested in are obtaining an apology, a retraction and a corrective statement.