This guide was last updated in September 2015
For more on media law see our guides on malicious falsehood, harassment and misuse of private information.
There are two different types of civil claims for defamation:
- libel - which relates to the publication of a statement in permanent form, such as in writing, but also includes broadcasts or stage productions;
- slander - which relates to the transient publication of a statement, such as by way of speech, but also includes gestures or conduct.
What does a claimant need to show?
A claimant needs to show that the statement complained of:
- is defamatory, meaning that an ordinary person would think worse of the claimant as a result of the statement;
- identifies or refers to them, and
- is published to a third party.
Since the introduction of the new Defamation Act of 2013, (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, them serious harm. In the case of bodies trading for profit, serious harm means caused, or is likely to cause, them serious financial loss.
A claimant must also show that the claim involves the commission of “a real and substantial tort”, failing which it is liable to be struck out as an abuse of process, as outlined in the case between Yousef Abdul Latif Jameel and Dow Jones in 2005. However, according to a July 2015 ruling in Lachaux v Independent Print Limited & Ors, the principles established by the Jameel case have largely been subsumed into the test of serious harm that is set out under section 1 of the Defamation Act.
A claim for slander also requires proof of special damage, meaning financial loss, 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.
Natural and ordinary meaning
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 often determined by the court as a preliminary issue.
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 one of the following defences.
The DA 2013 introduced the statutory defence of truth, replacing the common law defence of justification. It 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 DA 2013 introduced the statutory defence of honest opinion, replacing the common law defence of fair comment. It provides a defence if the statement complained of:
- was one of opinion;
- indicated the basis of the opinion, whether in general or specific terms, and
- was an opinion which could have been held by an honest person on the basis of any fact which existed at the time the statement was published, or anything asserted to be a fact in a privileged statement published before 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.
Publication on a matter of public interest
The 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:
- that the statement complained of was, or formed part of, a statement on a matter of public interest, and
- a reasonable belief that publishing the statement complained of was in the public interest.
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.
Allowance is specifically made in the DA 2013 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.
- The ‘innocent dissemination’ defence: the Defamation Act of 1996 (DA 1996) provides a defence to a person who can show that they are not the author, editor or publisher of the statement complained of, that they took reasonable care in relation to its publication and that they did not know, and had no reason to believe, that what they did caused or contributed to the publication of the defamatory statement.
- The website operator’s defence: it is a defence for the operator of a website to show that it was not the operator who posted the statement on the website. However, the defence is defeated if the website operator does now follow the procedure set out in section 5 of DA 2013 and the Defamation (Operators of Websites) Regulations of 2013 following receipt of a notice of complaint from a claimant who is unable to identify the person who posted the statement, with sufficient detail to allow proceedings to be served on them.
- The E-Commerce Regulations of 2002 defences: providers of "information society services" who play an intermediary role as "mere conduits" or by “caching” or "hosting" defamatory material are provided with a defence under regulations 17, 18 and 19.
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”.
Absolute privilege – 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.
Qualified privilege - 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 of DA 2013. This defence can be defeated if there is evidence that the publication was made with malice. Examples of statutory qualified privilege include fair and accurate reports of proceedings in public of legislatures or courts or international organisations anywhere in the world; fair and accurate reports of proceedings at a general meeting of a UK public company; fair and accurate reports of findings or decisions of certain public bodies and associations; fair and accurate copies or extracts from any register or other documents required by law to be open to public inspection; and fair and accurate copies or extracts from any documents circulated to members of a UK public company with the authority of the board or by the auditors.
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, for example in situations such as the providing of an employment reference; a member of the public complaining to the police; reporting activities of a fellow employee to a superior, or internal company communications. 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.
Peer reviewed statements in a scientific/academic journal
DA 2013 extended qualified privilege to cover peer-reviewed statements published in scientific or academic journals.
The decision in Lachaux v Independent Print Limited & Ors means that libel is no longer actionable without proof of damage, which is a significant departure from the previous common law presumption of damage.
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, he was committing an offence and decided to publish anyway, as the gain outweighed the potential loss.
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 (the rule in Bonnard v Perryman). Final injunctions may be available to prevent further publication if the claimant is successful at trial.
Publication of a judgment summary in open court
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.
Non legal remedies
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.