
Types of Defamation:
There are two expressions of defamation, 1. Libel (written) and 2. Slander (spoken).
Evidencing a claim:
Providing evidence to support the claim that the defamatory statement has affected the person or entity is important. Has society’s view of the claimant changed for the worse, or has the entity suffered harm to its reputation to the level of seriousness that is likely to or causes serious financial loss? Proving serious harm is now crucial to succeeding in a claim of defamation and it sets an evidential burden on the claimant to prove this impact. This precedent for this test was established in Lachaux v Independent Print Ltd [2019] UKSC 27.
Time limit to bring the claim:
- One year from the date of the defamatory statement being made but can be extended if there are ground and with the Court’s discretion.
Defences:
The statement may be defamatory. However, there may also be a defence available to the Defendant. In overview, those defences are:
- Truth: The statement is “substantially” true.
- Honest opinion: The statement is an opinion rather than a factual allegation, the basis of the opinion must be indicated and an honest person could hold that opinion based on the facts available at the time of publication.
- Public Interest: The statement is on a matter of public interest, and the defendant reasonably believes that publishing it was a matter of public interest.
- Absolute Privilege: For example, parliamentary proceedings, in Court, reports of judicial proceedings
- Qualified Privilege: there are two types of qualified privilege; one is statutory and the other is based on common law. The latter requires a reciprocal relationship of duty and interest between publisher and published. Circumstances where the former is relevant are set out in the Defamation Act 2013.
Remedies:
- Apology and Correction: Public apology and correction of the statement.
- Damages: Compensation for distress, hurt feelings and damage to reputation.
- Injunction: Preventing further publication of the defamatory statement (although these are not easy to get).
Lessons learnt:
- Be careful with what you say or write. People like to refer to ‘freedom of expression’ but it can have consequences.
- Social media gives everyone a voice, but use it wisely.
- If you think that you have been defamed, make sure you have a clear record / transcript of the defamatory statements or details of what’s been said about you. If the defamation is online, take screenshots of ‘likes’, ‘views’, number of followers etc. Evidence is important.
- Do not expect to receive millions in damages (at least in this jurisdiction – America is a different kettle of fish). An apology can be sufficient and damages are rarely huge, even for the famous!