What is defamation?

The law surrounding defamation is a very important tool in protecting businesses’ and individuals’ reputations. The explosion in the use of social media means that everyone is at risk of a defamatory statement being made publically available to a wide audience.  

Defamation trials are generally in front of just a judge without a jury. The judge decides whether the words are damaging to the claimant’s reputation considering their ordinary and natural meaning.

What is a defamatory statement?

Defamatory means that the statement would either damage, or could damage, the reputation of the affected claimant. What will be considered is whether the statement would “lower the claimant in the estimations of right-thinking members of society generally”.

The defamatory statement also has to identify or refer to the claimant and be published to a third party. Identification of the claimant is not always straightforward and where this is disputed or uncertain, it will have to be determined by the court. 

The Defamation Act 2013 introduced the need for the publication of the defamatory statement to cause (or be likely to cause) serious harm to the claimant’s reputation. Injury to feelings is not sufficient and damage to an individual’s reputation has to be proved. A business will not have suffered serious harm unless the statement has caused, or is likely to cause, serious financial loss. 

What are the types of defamation?

So you may be wondering what does defamation mean? Defamation actually has two separate branches, which both concern the publication of defamatory statements:

• Libel
• Slander

what is Libel?

Libel is the publication of a statement in a permanent and lasting form, such as:

• In writing
• Broadcasts
• Stage productions

Slander 

Slander is more transient and covers methods such as:

• Speech
• Gestures
• Conduct

It can be harder to prove slander without any evidence that the statement was made. It also requires proof of special damage (financial loss) as well as serious harm, unless one of the exemptions apply:

• An allegation that the claimant has committed a crime that they can face a prison sentence for.
• If the statement was meant to disparage the claimant in relation to his office, profession, calling, trade or business at the time of publication.

Who can make a claim of defamation?

Individuals can bring a claim of defamation if they were the person defamed but they cannot bring it on behalf of another person (for example, in relation to someone that is deceased that has been defamed).

Claims can also be brought by business and organisations, trade unions and other legal entities. Governing bodies, public authorities, political bodies and unincorporated associations are not able to bring defamation claims.

Claimants have one year from date that the defamatory statement was made to bring an action for defamation. 

Remedies

There are various remedies that can be used in these cases. Often what the claimant will want is an apology or statement correcting the defamation or retracting it to correct the issue caused. The offer to amend was previously introduced by the Defamation Act 1996 and allowed the defendant to acknowledge an innocent mistake and correct it with an apology, published correction and payment of damages and costs. This process can only be used before the service of the defence. The offer is then either accepted or rejected by the claimant, but unless the claimant can show that the statement was malicious, the offer provides the defendant with a complete defence.

Damages

Damages can be awarded to the claimant and can be compensatory or exemplary. The court will consider the:

• Level of injury caused.
• Seriousness of the defamation. 
• Extent and nature of the publication.
• Any mitigating factors. 

The award of damages can be seen as vindicating the claimant’s reputation as well as providing compensation for the distress and humiliation that was caused by the statement. Exemplary or punitive damages are used as a punishment, particularly where the defendant is a business that acted negligently.  

Injunctions

Interim injunctions to prevent further statements while the case is ongoing are generally not granted. However, where a claimant is successful, it may be that an injunction will be granted to prevent the any further publications of the same or similar defamatory statements.

Publication of a judgement summary

The court can order the defendant that loses a case to publish a summary of the judgement as a way of remedying the harm caused.

Order to remove the defamatory statement

The court can also order the defendant to remove the defamatory statement to prevent any further harm.