A defamatory statement is an untrue statement published to a third party that affects the reputation of a person, company or firm. There are two types of defamatory statements: libel and slander.
Libel occurs when a defamatory statement is written or in any similarly permanent form. Damages can be awarded for libel, unless the defamatory statement in question is protected by a defence in libel law (eg, truth, honest opinion, in the public interest, covered by privilege or published with consent).
Slander occurs when a defamatory statement is spoken or in any transient form. The two exceptions to this are defamatory statements broadcast on radio or television or said during a public performance of a play: these are classed as libel under the Broadcasting Act 1990 and Theatres Act 1968. Damages are also available if slander is proven and no defence is available.
Under the Defamation Act 2013, to succeed in a defamation claim the statement must be made against an identifiable claimant and the statement must have caused or would be likely to cause serious harm to the claimant’s reputation. Legal entities bringing an action for defamation must prove that the statement caused them serious financial loss. In slander cases, apart from some limited exceptions, the claimant must also prove that they suffered special damage (ie, that they actually suffered directly due to the slander, eg through lost wages, lost earning capacity or loss of business opportunities).
When judges explain the concept of a defamatory statement to juries, they say that it ‘tends to’:
The phrase ‘tends to’ means the claimant does not have to prove the statement actually did expose them to ridicule or contempt or disparage them in their profession. It is enough for the words used in the statement to ‘tend to’ have this effect when used about an individual (or company or firm).
What counted as libel 20 years ago may no longer have the same negative effect, so judges refer juries to the standard of intelligence and judgment of the hypothetical ‘reasonable man’ as a measuring stick. The jury must therefore ask itself whether a reasonable man or woman would find the statement defamatory under the circumstances in which it was published.
When assessing whether a statement lowered the person ‘in the estimation of right-thinking members of society generally’, it is not enough for the claimant in a libel case to show that the words published lowered him/her in the estimation of just one specific community or group of people, although this may be sufficient where a business, trade, office or profession is defamed.
Usually a defamation case will be tried by a jury. The exceptions are when both sides agree for the case to be heard by a judge without a jury or when the judge decides that a jury will complicate matters. This could be, for instance, because explaining the complexities of certain defamation cases to a jury of laypeople could be too time-consuming.
In a libel case with a jury, the judge will rule whether the statement in question is capable of bearing a defamatory meaning. If s/he does so, the jury will then be called upon to decide whether or not the statement was in fact defamatory. The jury takes into account the circumstances in which the statement was made, eg, examining the meaning of the exact words in the context they were originally used.
If the jury finds the statement was defamatory it will then decide how much the publisher will pay in damages to the individual, company or organisation about whom the statement was made.
It is almost always defamatory to say that an individual is a liar, or a cheat, or is insolvent or in financial difficulties. The publisher’s defence to this statement being libel would be limited to proving that such a statement was indeed true.
Defamation claims must abide by the Pre-action Protocol for Defamation. This requires the claimant to notify the defendant of his claim at the earliest opportunity setting out:
The defendant must respond within 14 days explaining whether or not the claim is accepted, whether parts of the claim are accepted (and if so, which parts), or whether the claim is rejected and if so, why.
The parties should consider alternative dispute resolution before heading for trial and costs must be kept to proportionate to the nature and gravity of the case and the stage the complaint has reached.
Nicola is a dual qualified journalist and non-practising solicitor. She is a legal journalist, editor and author with more than 20 years' experience writing about the law.
When you submit your details, you'll be in safe hands. Our partners are National Accident Helpline (a brand of National Accident Law, a firm of personal injury solicitors regulated by the Solicitors Regulation Authority). They are the UK's leading personal injury service. Their friendly legal services advisers will call you to talk about your claim and give you free, no-obligation advice. National Accident Law may pay us a marketing fee for our services.
By submitting your personal data, you agree for your details to be sent to National Accident Law so they can contact you to discuss your claim.
If you win your case, your solicitor's success fee will be taken from the compensation you are awarded - up to a maximum of 25%. Your solicitor will discuss any fees before starting your case.
