Fighting words: Defamation law in England, explained

What does ‘defamation’ mean?

Defamation is a spoken or published false statement or picture which unjustly harms the reputation of another person. In the United Kingdom as in many other countries, defamation is divided into slander and libel. Spoken defamation is called slander. The other form of defamation is libel, which is defamation in “lasting” forms such as published (written) words or images, or audio and video recordings of the same. This post considers libel.

The first statute in which defamation is mentioned dates back to 1251, during the reign of King Edward I! Nearly 400 years later, after King James I issued a royal edict outlawing duelling in 1613, people were forced to place down their swords and turn to the courts in order to settle reputational damage. It was during this time that England saw its first fully reported libel case.

In essence, defamation law seeks to protect someone’s personal character from destructive attacks, but it must do so without sacrificing freedom of thought and the benefit of public discussion.

Van Vechten Veeder, 1903. The History and Theory of the Law of Defamation, Columbia Law Review.

What are the elements of libel?

Under English law, the burden of proof is on the claimant. This means that the person whose reputation has been injured must prove that the defendant did the following three things:

1. The defendant’s statement was defamatory
2. The statement was published to a third party within the last year
3. The statement identified the claimant

If the claimant can successful establish these things, defamation will have occurred, unless the defendant has a defence.

Element 1: Defamatory

In order to be considered libelous, the statement complained of must be false, because as explained below, truth is a defence. Secondly, the statement must be defamatory. What does this mean?

Thre is no definition of a “defamatory statement” in either legislation or case law. It is always considered on a case-by-case basis, and depends on the precise words used. During a lawsuit, the judge will typically consider if “the statement tends to lower the claimant in the estimation of right-thinking members of society generally” (Sim v Stretch, 1936). The court will need to evaluate the exact meaning of the words used, and their context: this is usually where clever legal arguments are used on both sides.

Additionally, following the enactment of the Defamation Act 2013 (“DA 2013“), a statement will not be considered defamatory unless it caused or is likely to cause serious harm to the claimant. This new requirement was introduced in part to discourage people from starting trivial lawsuits.

Element 2: Publication

The statement must have been published, and the defendant must be repsonsible for the publication. A third party – meaning someone other than the claimant or the defendant – must have read those words. This is pretty straightforward when libel is contained in books, newspapers, or even when it broadcast on TV or available on popular websites. Libel can of course also be on social media, to include Twitter or Facebook. However, libel cannot occur if the words were in an unread message, or on a website that was not visited by a third party. After a defamatory statement is published, a potential claimant has only one year in which to file a lawsuit, as set out in the (older, but still valid) Defamation Act 1996.

Element 3: Identification

The claimant must prove that the statement was actually about her. If she is named or clearly identified, this will be straightforward. However, where the identification is disputed, the courts will need to decide whether “reasonable people would understand the words referred to the claimant” (Morgan v Odhams Press, 1979). Identification is an objective test, and the claimant may be required to prove that the audience had specific facts and important context needed to identify her.

Who can sue for defamation?

Bringing a legal action for defamation is a personal action. In legal terms, this means that only the person who has allegedley been defamed may bring proceedings. Unless the person defamed is a minor, you cannot bring a lawsuit on someone else’s behalf. Therefore, defamation of a deceased person is not capable of legal remedy in the United Kingdom. (Although in other countries, it is possible to defend that honour of someone who has passed away.)

What are the defences?

The following is a non-exhaustive list of possible defences:

• Truth — Although it may be rude or damage someone’s reputation, proving that a statement is actually true is a complete defence to the accusation of defamation. For example, if your ex-partner had an affair and you can prove as much, it would not be defamation to say they are, indeed, a cheater. If true statements could be defamatory, it would unfairly discourage freedom of speech and whistleblowing, amongst other things.
  
• Honest opinion — The defence of honest opinion means that although the comment wasn’t true, the defendant wasn’t actually saying it was a fact. Instead, the defendant was just expressing their personal opinion! In such cases, they may have a defence. For this reason, you may notice that some newspaper editorials often include the words “I believe” or “In my opinion”!
  
• Publication on a matter of public interest — If the defendant can prove that she reasonably believed publishing the statement was in the public interest, she may have a defence. This is a relatively new defence which became available under section 4 of the DA 2013.
  
• Consent — If the claimant consented to the statement being published, she cannot typically turn around and sue for defamation.
  
• Peer-reviewed statements in scientific and academic journals — This is a very narrow defence under section 6 of the DA 2013. The defendant must show that the statement relates to a medical, engineering, or academic matter which was sufficiently peer-reviewed.

The following defences are a bit more complicated, and are somewhat difficult to explain in plain English. However, they include:

• Absolute and qualified privilege — If the statement is covered by privilege (for example, if it was part of Parliamentary proceedings, durig a trial, or between a solicitor and her client) it may be defensible.
  
• Intermediary defences — an online intermediary is just a fancy way of saying an internet company, but it’s actually more complicated than that. In short, this protects internet companies like BT and Sky from being sued for every defamatory statement published online! If the defendant can prove that it was “only” involved in the electronic/digital transmission or presentation of the content, and not technically responsible for the publication, they might be able to escape liability.

• Offer of amends — a procedure whereby the defendant admits she made a mistake, and wants to streamline the resoultion process as quickly and as inexpensively as possible. This is set out in sections 2 to 4, in the (older, but still valid) Defamation Act 1996. This will often include an apology published by the defendant.

What are the remedies?

The main legal remedies available for claimant wins a defamation lawsuit are:

• Monetary damages — Compensatory (general) damages are available to remedy the claimant’s distress, together with any financial loss which flows from the libel, or the cost associated with vindicating her reputation. Special (punitive) damages, which seek to punish the defendant for their behaviour, are available if the defendant’s actions were particularly aggrivated.
  
• Injunction — Permanent injunctions are a tool the court uses to prohibit the defendant from publishing the defamation. This is usually only available after the claimant has won her case. Interim injunctions, or injunctions made before the final judgment is handed down, are not typically available, for reasons explained here on the Inforrm blog.
  
• Publication of a summary of the court’s judgment — under section 12 of the DA 2013, the court has the power to order the defendant to publish a summary of the judgment.
  
• Removal — under section 13 of the DA 2013, the court can also order the website on which a defamatory statement is posted to remove the statement.

What about a declaration that the statement was false?

Not all defamation lawsuits go to trial. If the parties reach a settlement – which is the usual outcome – they will commonly agree to a published correction or apology. See also the offer of amends, mentioned above.