Background

Defamation is either an oral or written false statement about you that has caused or is likely to cause serious harm to your reputation

Defamation covers libel and slander. 

  • Libel concerns lasting forms of publication such as print, online or broadcasting. A libel claim is actionable where harm is proven or is likely to have been caused. 

  • Slander is more transient forms such as spoken words and gestures. A slander claim requires the person making the claim can show that it has caused tangible damage. 

In the U.K, the Defamation Act 2013 governs the law of Defamation. However, case law that pre-dates the Act is still used as guidance in some situations. 

Defamation is a tort of strict liability which means the claimant does not need to establish any sort of intention to defame on behalf of the defendant. A claimant just needs to establish that a statement was defamatory of them and the defendant will need to establish a defence. 

A good understanding of human rights law is desirable if you're interested in a career in Defamation law. Article 8 of the European Convention on Human Rights (ECHR) "right to respect for private life" needs to be balanced against Article 10 "right to freedom of expression"

The Electronic Commerce (EC Directive) Regulations 2002 ("E-Commerce Regulations") can also be relied upon in certain cases that involve online defamation. The E-Commerce Regulations protect innocent disseminators of defamatory material over the internet. 

If you're interested in pursuing a career as a Defamation Lawyer, the role tends to sit within the Media & Entertainment team (and/or the Privacy and Data Protection teams).

 

The role is contentious as you will be bringing or defending defamation claims in court. 

What is required for a claim?

Defamatory Statement

  • The libel claimant must establish that the words complained of are defamatory to them. 

  • There is no definitive judicial interpretation of what is considered a 'defamatory statement'. 

  • Whether words are defamatory will depend upon the words that are actually used - this will be judged by the standards of society at the time of the statement/publication.

  • The statement has to have caused (or is likely to cause) serious harm to the reputation of the claimant and if the claimant is a body that trades for profit (so a business), 'serious harm' will be serious financial loss only. 

  • The common law requires that the defamation claim involves a 'real and substantial tort' - it would amount to an abuse of the court's process to pursue a claim that does not satisfy this requirement because so little is at stake. I.e. the proceedings have to serve a legitimate purpose

  • The claimant must prove that the 'defamatory statement' was published about them (this will be easy to prove if the claimant is expressly named). If not named, the general test is whether reasonable people would have understood the words as referring to the claimant. It is an objective test. 

Publication

  • The claimant will need to show that the 'defamatory statement' was or is published to a third party and the defendant was the one to publish or was responsible for publishing the statement. 

  • Examples of publication include books, newspapers, TV programmes, social media platforms etc.

  • Publication has not occurred if the statement is in an unread email or in unvisited web pages

Who can sue?

A defamation action is a personal action so only the person that believes they have been defamed can bring the proceedings. You cannot bring a claim on behalf of another person (unless the claimant is a minor). 

Limitation period

The limitation period for bringing a defamation claim (including both libel and slander) is one year. The period runs from the date on which the cause of action accrued (so the date of the publication). 

Defences...

In addition to the general defences to torts that will apply equally to defamation claims, the following are specific defamation claim defences:​

  • Truth

  • Honest opinion

  • Publication on a matter of public interest 

  • Absolute and qualified privilege 

  • Peer-reviewed statements in scientific and academic journals

  • Intermediary defences

  • Offers of amends 

What do defamation lawyers do?

A defamation lawyer will:

  • help their client with bringing or defending a defamation claim in court; 

  • provide advice on managing risk of defamation claims when a client wants to publish a statement; 

  • research past case law dealing with similar situations; 

  • prepare cases for court; 

  • take early action where relevant to prevent an allegation from being published in the first place; and

  • deal with the removal of the defamatory work (where appropriate).

Remedies 

  • An injunction/undertaking not to repeat the defamatory statement. 

  • An apology or retraction with agreed terms. 

  • Damages (compensation for injury to reputation and distress/injury to feelings). 

  • Legal costs. 

  • A statement in open court to correct the record.