Defamation

This guide is based on UK law. It was last updated in April 2008..

Overview

Any disparaging statement made by one person about another, which is communicated or "published," may well be a defamatory statement and can give rise to an action for either libel or slander in English law.

Distinction between libel and slander under English law

Generally speaking, slander is when a defamatory statement has been made orally without justification. If the statement was made in a permanent form, for example, recording words onto tape, it would not be slander but libel.

Libellous statements are those that are recorded with some degree of permanence. This would include statements made by email or on on-line bulletin boards.

In Scotland, the distinction between libel and slander is not of importance. In the face of any such action, it is then up to the person making the statement to show he or she had justification for making the statement in question.

Remedies

Under English law, the remedies are different for libel and slander. In the case of libel (the recorded statement), the victim can win damages even if he has not suffered financial loss as a result of the statement. On the other hand, a person who has been slandered (i.e. the statement which is not recorded) must prove that actual damage has been suffered. In a Scottish action, it is necessary to show that some harm has been caused but it is not necessary to show financial loss, although this would have a bearing on an award of damages.

Common defences to libel and slander

• That the alleged wrong-doer was not the publisher of the statement;
• That the statement did not refer to the alleged victim;
• That the statement's meaning was not defamatory;
• That the statement was true;
• That the statement was for comment on a matter of public interest;
• In an action for slander under English law, that the statement caused no loss to the alleged victim; or
• In a defamation action under Scots law, that the statement was made in the heat of an argument.

Defamation on the internet

It is possible for an Internet Service Provider ( ISP ) to be liable for the content of sites which it hosts.

This was first seen in the UK in a legal action brought by Mr Godfrey against Demon, the ISP . An unknown person, purporting to be Mr Godfrey, made a defamatory posting which appeared on Demon's news server in the UK . The posting could be read by Demon's customers. When Mr Godfrey asked Demon to remove the posting (having explained that it was a forgery), Demon did not do so. Mr Godfrey took Demon to court, claiming the ISP was responsible for defamation because it hosted the posting. As a result of Demon's failure to act on Mr Godfrey's request, he won his case against Demon.

Therefore, any ISP should treat a notice of complaint seriously and investigate it immediately.

The E-commerce Directive

The E-commerce Directive, and the E-commerce Regulations that implemented the Directive into UK law, have a bearing on the law of defamation on the internet. See our guide on ISP's liability for third party content.

Insurance

A number of commercial insurance brokers in the UK now offer "Internet Protector Policies" which cover libel (by employees using email or on company web sites) as well as other internet-related risks like downloading of viruses, unauthorised access and infringement of copyright. An employer may well be held responsible for misuse of e-mail by employees, even where an email policy is in force.

Internet access at work and vicarious liability

An employer, under UK law, is generally liable for the actions of its employees which they make whilst carrying out their employment. This is known as "vicarious liability". The best defence for an employer is to show that the employee was not taking action as part of his employment, but was off on "a frolic of his own". In order to help protect themselves, therefore, employers should draw up an e-mail policy setting out clearly what use may and may not be made of email and, if available, internet access.

Confidentiality

Though one thinks of email as a direct means of communication, a message is often relayed through several servers before reaching its intended recipient. At each stage, a third party may have an opportunity to read its contents.

Does this constitute publication?

Publication, for the purposes of defamation, requires communication to a third person. That third person must actually become aware of the defamatory material. So, transmission from server to server probably does not amount to publication if the words are not read by anybody. However, if someone who is not the intended recipient were to intercept and read the email, it is likely that the Courts would consider this to be a publication. It is common for people to give access to their e-mail system to others. In such cases, where another has access, there is publication for the purposes of defamation.

Conclusion

Like many areas of law, liability for defamation can be avoided by taking a common sense approach. If you are an ISP , listen to complaints. If it is appropriate, remove offending material which you host; if you are in doubt, seek legal advice or, at the very least, err on the side of caution. If you are an employer, adopt an email policy. You can find an example policy here. You should also consider taking out insurance.

Any questions? Please contact struan.robertson@out-law.com / 0141 249 5422 or one of our other contacts.