Defamation

Defamation is the generic word for a type of legal claim that includes libel, slander and malicious falsehood. They have a certain amount in common — they all involve seeking redress for damage to the claimant’s reputation — but they each have their own rules as to which one applies and what is needed to establish a valid claim.

In a nutshell, the different types of claim are as follows:

1. Libel involves publication of a defamatory statement in writing or in another permanent form (such as on TV), other than to the person to whom the defamatory statement relates.
2. Slander involves the speaking of a defamatory statement or publication in some other temporary form (it is suggested that publication of defamatory material on services such as Twitter are more likely to be regarded as slander than libel).
3. Malicious falsehood is the publication of false statements, knowing or believing them to be false or reckless as to whether or not they are false, and which cause financial loss.

My work in the field of defamation is primarily for publishers and mainly involves reading and clearing publications — particularly books and magazines, but potentially other material also — for libel prior to publication. I have been carrying out this work for publishers for many years (including 25 years of reading Which? magazine and other publications from Which? for libel). Whilst libel litigators tend to grab the headlines, publishers do need to minimise their exposure to the risk of libel claims by having potentially controversial books and other publications read for libel before they are published. I would consider that I have succeeded if there is no valid claim for libel arising out of a publication I have read for libel.

I do not conduct litigation on behalf of my clients, but where it appears to me that a complaint for or against a client is likely to be capable of resolution without the need for litigation — for example, if the claim for a client is really not defensible — then I may be prepared to deal with the matter on behalf of the client to obtain the appropriate remedies — primarily, compensation and a suitable apology. Similarly, if the claim against a client is not defensible, then it’s really a question of helping the client to get out of the situation at the minimum cost.

What is the difference between libel and slander?

Apart from the form in which publication takes place, the main difference is that in order to succeed in certain claims of slander, the claimant would have to prove that he or she has suffered financial loss. This is not a requirement in libel claims.

What are the elements of a libel claim?

A claimant will have to show the following if he or she is to get a claim for libel off the ground:

• that the defendant has published or is responsible for the publication of defamatory material which is reasonably understood to refer to the claimant, either by name or by other means of identification.

Once the claimant has established the above elements, the onus then passes to the defendant to establish a defence.  The most common defences applicable to publication in a book, newspaper or magazine are:

• justification (i.e. truth);
• fair comment;
• qualified privilege;
• offer of amends.

In the case of book, newspaper and magazine publishing, once the book, newspaper or magazine is available in the shops there can be no dispute as to whether or not publication has taken place, although publication in a technical legal sense may well have taken place at an earlier stage.  Once publication has taken place, there might well be a dispute as to whether or not the material published is defamatory, and there can be a dispute as to whether or not the material published is understood to refer to the claimant. The other main area of dispute in a libel action concerns the issue of what exactly the words in question mean.

Who can claim for libel?

The claimant has to prove that the defamatory statement would have been understood to refer to him.  Generally, the claimant is clearly named — in that case there would be no problem in proving that the statement refers to him.
A claimant who is not named in the publication can sometimes claim to have been identified if there are sufficient pointers in the publication to suggest to some people that it refers to the claimant.
People who share the same name as the intended target of the defamatory statement can claim that people would have reasonably believed the defamatory statement referred to them, even in cases where the defendant (author, editor, publisher) had no intention whatsoever of referring to the claimant.
Some particular situations can give rise to difficulty for the claimant in establishing that the publication is understood to refer to him or her:

Class libel

Where there is an allegation against a group or class of people as a whole, can an individual within that group can claim to be identified? For example, if someone published a statement that “All lawyers are thieves”, it is well established that no individual lawyer could sue.  But if the allegation was directed at a small firm of solicitors, then arguably any of the lawyers within that firm could sue.  It appears to depend primarily on the size of the group.

Companies

A company can sue for libel.  So can an officer who is known to be responsible for the management of a company that is, for example, accused of malpractice.

Local authorities

A local authority cannot sue for libel, but council officers can sue if the allegation reflects personally on them.

Political parties

It has been held in one case that a political party could not bring a claim for defamation.

The Dead

Under English law, the estate of a deceased person cannot sue for a libel on behalf of that deceased person. Furthermore, if a claimant is in the process of pursuing a libel action and then dies, then the libel action automatically comes to an end when the claimant dies.

What is defamatory?

There is a two-stage process involved in establishing whether the material published is or is not defamatory:

• firstly, what is the meaning of the words?  and
• secondly, is the meaning defamatory?

(i) What is the meaning of the words?

Where there is a jury, it is the job of the jury to determine what the meaning is.  However, before the jury is asked to do that, the judge will decide whether the words are capable of bearing any particular meanings that the claimant and defendant say the words mean – these meanings could be very different indeed. The claimant will usually say that the words convey the most serious meaning that can possibly be extracted from the words in question, but the defendant will argue for a much more innocent meaning – one that is not defamatory at all or which is only mildly defamatory.

Generally, the meaning that will be given is the natural and ordinary meaning of the words, namely the meaning that an ordinary reasonable person would derive from the words, without any special knowledge beyond what ordinary people generally would be taken to know.

In some cases, an ordinary reasonable person would not be able to discern a defamatory meaning, but there might be some readers who have special knowledge that enables them to understand the words in a different way. In such a situation, the claimant can rely on what is known as an “innuendo meaning”, rather than the natural and ordinary meaning of the words.  A classic example is this: “X was seen leaving 26 Acacia Avenue”.  To the ordinary reasonable person and in their natural and ordinary meaning, these words are harmless and have no obviously defamatory meaning.  But to those who know that there is a brothel at 26 Acacia Avenue, it could mean that X goes to prostitutes.

(ii) Is the meaning defamatory?

Just because an allegation is false, that does not mean it is defamatory.  Even if the allegation causes substantial damage, that does not of itself make it defamatory. There may be a basis for a complaint to the Press Complaints Commission or to Ofcom, depending on the media in which the material was published, if the publisher refuses to publish a correction.  There may be claim in malicious falsehood if the claimant can prove that the maker of the statement has been malicious.

Definition of “defamatory”

There have been a number of attempts to define what is meant by “defamatory”, including these:

A defamatory allegation is one that tends to make reasonable people think the worse of the claimant.  This implies an element of discredit or moral blame.

Another definition is “words which cause a person to be shunned or avoided” — this would include allegations which carry no moral blame but which might make people avoid the claimant.  A 1934 Court of Appeal case decided that an allegation that the plaintiff had been raped was defamatory, although it is unlikely that such an allegation would be decided in the same way today.

A further definition is “words that expose the claimant to hatred, ridicule and contempt”.

Examples of allegations that could be defamatory include:

• An allegation that that the claimant has committed a criminal offence;
• An allegation that the claimant is bankrupt or insolvent, as the case may be;
• An allegation that the claimant is unfit for his profession, calling or trade or that he has been guilty of a lack of care or judgment in his profession, calling or trade;
• An allegation that the claimant has been guilty of “sharp practice”;
• An allegation that the claimant is a liar;
• An allegation that the (married) claimant has had an affair; and
• An allegation that the claimant is a racist.

Nowadays it is probably not defamatory to accuse someone of being homosexual, but the claimant might be able to get round this and succeed by claiming that the words in question amount to an allegation of hypocrisy as to his sexuality, or, if he is married, that he has been unfaithful.

Defences

(i) Justification

The defence of justification involves proving that the statement complained of is true or substantially true.

English law presumes that any defamatory statement is false, and so the burden of proof in justification is on the defendant to prove that the statement is true.

(ii) Fair comment

To succeed in a defence of fair comment, the defendant has to prove:

• that the statement in question is comment, as distinct from a statement of fact;
• that the comment is based on facts which are themselves substantially true and are stated or referred to in the material about which the claimant complains;
• the comment is one that a “fair-minded” person could honestly hold; and
• the subject matter of the comment is of public interest.

Even if the defendant can prove the above, his defence can be overcome by the claimant if the claimant can prove that the defendant published the comment maliciously. In this context, malice means an improper motive. In effect, it requires the claimant to prove that the defendant did not honestly believe the comment that he made.

(iii) Qualified privilege

There are basically two types of privilege — absolute and qualified.  No proceedings can be brought in relation to a statement made on an occasion of absolute privilege, even if it is false, damaging and has been published maliciously.  Absolute privilege arises most commonly in respect of statements made in court or in Parliament and fair and accurate contemporaneous reports of court proceedings.

Qualified privilege gives a lesser protection, but provides a defence even where the allegation is false, but the defence is defeated if the claimant can prove that the statement was published maliciously.

There are three main categories of qualified privilege:

1. Duty and interest: this where the maker of the statement has a legitimate duty or interest in making the statement and the recipient or recipients of the statement have a corresponding legitimate duty or interest in receiving it.
2. Media publications on matters of public interest: this is an extension of the “duty and interest” category, and is subject to qualifications laid down by the House of Lords in the case of Reynolds v Times Newspapers Limited and subsequent cases.
3. Fair and accurate reports of certain proceedings, documents and statements.

In the Reynolds case, Lord Nicholls set out a non-exhaustive list of circumstances which would be relevant to the privilege issue in a “media” case — in effect a test of what has been called “responsible journalism”. Among these are:

1. The seriousness of the allegation.  The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true.
2. The nature of the information, and the extent to which the subject-matter is a matter of public concern.
3. The source of the information.  Some informants have no direct knowledge of the events.  Some have their own axes to grind, or are being paid for their stories.
4. The steps taken to verify the information.
5. The urgency of the matter.  News is often a perishable commodity.
6. Whether comment was sought from the claimant.  He may have information others do not possess or have not disclosed.  An approach to the claimant will not always be necessary.
7. Whether the article contained the gist of the claimant’s side of the story.

The “Reynolds defence” does not apply only to newspapers: it has also been held to apply to books.

(iv) Offer of amends

An offer of amends is a procedure to enable authors and publishers who recognize that they have made a mistake in publishing defamatory material to put their hands up, admit responsibility, and get out of the situation as quickly and as cheaply as possible.

An offer of amends must be in writing and involves offering to make a suitable correction and sufficient apology and to pay compensation and costs to the claimant. There are detailed provisions for working out what happens if the parties can’t agree on any particular elements of this, e.g. the amount of compensation to be paid to the claimant.

Remedies for libel

A successful claimant in a libel action can expect the following remedies:

• Damages to compensate for the injury to his reputation;
• An injunction to prevent further publication;
• Payment of his legal costs — or most of them.

If the case is settled before going to trial, there would usually also be a published apology or a Statement read in Open Court (which can be safely reported upon by the media).