In today’s interconnected world, integrity and reputations of an individual can be damaged or destroyed by a few mouse-clicks. Defamatory publications can not only be costly, in terms of loss of opportunity or revenue, but can also be a source of considerable distress and embarrassment, which can affect an individual’s personally: damaging relationships or preventing them from developing in the first place. It is often necessary to act quickly before a damaging publication spread.
The ‘defamatory statement’ is the publication of a statement to at least one other person that will tend to cause the hypothetical average reader to think less of you. The fact that a statement is untrue, upsetting and/or insulting does not necessarily mean it is defamatory. Additionally, the publication must have caused, or be likely to cause, “serious harm” to your reputation. In a defamation claim the burden is on the claimant to prove a statement has been read and serious harm suffered.
The term ‘serious harm’ is constantly being debated by lawyers and judges. The threshold is relatively high. Serious harm will depend on all the circumstances of the publication for example If a defamatory statement is not read by many individuals or unlikely to be taken seriously then the test may not be met. The term ‘Libel’ is the permanent defamation (e.g. written) and ‘slander’ is used for temporary defamation (e.g. spoken). With some exceptions, it is normally necessary to prove actual loss to bring a slander claim, whereas in libel claims you will normally automatically be entitled to compensation (provided that the ‘serious harm’ test is met).
Defamation can be accidental like by being careless in what you say and defendant’s intention is generally irrelevant. You may also be liable for simply repeating someone else’s defamatory statement, if your republication causes the claimant harm Yes. The real issue is what the average reader would have understood the words to mean and whether they would cause reputation harm or not.
In English defamation law, it is presumed that a defamatory statement is false. This means there’s an evident burden on a defendant to prove it is “substantially true”. In defamation proceedings, a number of defences may apply which includes ‘truth’, ‘honest opinion’, ‘absolute privilege’ ‘publication on a matter of public interest’, , and ‘qualified privilege’. We will advise you on the applicability of any defences in consultation.
Certain statements, like statements/allegations made in court, parliament or to the police, are said to have been made on an occasion of ‘absolute privilege’. In these scenarios, any defamation claim will fail, even if the allegations/statements were false and malicious. The other scenarios where statements are said to have been made on an occasion of ‘qualified privilege’. For example, a report by an employee to a line manager.
The time limit for bringing a defamation claim is one year from the date of the publication. This time limit will only be dis applied in exceptional circumstances. The Court expects defamation claims to be brought quickly if genuine reputation harm has been suffered.
If your claim succeeds, the most common ‘relief’ the Court can order is: –
- Damages (compensation for injury to reputation, to vindicate the defamation, and for distress/injury to feelings)
- An injunction prohibiting the republication of similar statements
- Legal costs
However, most cases settle and solicitors are free to negotiate terms of settlement which commonly include: –
- Damages (compensation)
- An apology/retraction. This may be private, public or a statement in the High Court
- An undertaking (legal promise) not to republish similar statements
If you are facing a defamation and planned to bringing a defamation claim, the procedure is to instruct us to prepare a Pre-Action Protocol Letter of Claim. For this other than to take your detailed instructions, we will need to review the material complained of, other relevant documentation.
We will then prepare a formal Letter of Claim and send it to the defendant setting out your case and your requirements.
If the liability is not accepted or Letter of Claim does not resolve the matter immediately, a claim should be issued in the Queen’s Bench Division of the High Court which may prompt settlement discussions. If the claim does not settle the matter will be set down for a trial normally 12-18 months after the issue of the claim.