The Libel Bible: A deeper look at publication and meaning

Welcome to 'The Libel Bible' – a six-part article series on all things defamation. In this comprehensive series, we delve into the complexities of defamation and the law that surrounds it in the UK. With discussion on fundamental principles and commentary on recent cases, this series provides an informative insight into the intricate world of freedom of expression and reputation protection in today's progressive society.

Defamation arises when there is the publication of subject matter to a third party that would make an ordinary person think worse of the claimant as a result, thereby causing or being likely to cause serious harm to the claimant.

This article looks into what is meant by 'publication' and how the meaning of the publication is considered when assessing what impact it will have on the claimant's reputation and how serious the defamation may be. Our full 'Libel Bible' series details other aspects of defamation law.

Publication

To bring a defamation claim, the claimant must show that the statement complained of has been published to a third party by the defendant, and that this has caused (or is likely to cause) the claimant serious harm. The 'statement' refers to any material that conveys meaning, so it need not be words, for instance, it could be a graphic work or a work in some other medium. 'Published', in this context, means communicated to a third party whom both understands the defamatory statement and can identify the individual/company to which it refers (even if they are not named).

As the tort of defamation protects reputation, and the reputation of an individual or a corporate entity depends on what others think, the defamatory statement needs to be communicated to parties other than the claimant. The law of defamation will not protect a private conversation between a party making the statement and a party about whom the statement is made.

However, the publication need not be commercial or public. Communication to just one individual is enough to amount to publication, although this would be unlikely to meet the additional requirement that the publication caused serious harm. It is also possible for a claim in respect of minor defamation published to just a few people to be struck out on the basis that it is too small a claim to be a proper use of the court's resources.

The burden of proof is on the claimant to demonstrate that the defamatory statement has been published. However, the publication is easily shown where the statement is in a book, newspaper, broadcast programme of any kind, or on a popular website.

A post on a social media platform is considered a publication as long as a third party has seen it. Conversely, if a statement exists on a webpage that no one has visited then that will not amount to publication.

In principle, each communication of the defamatory statement is considered a new publication and therefore a new cause of action. In the case of webpages, it is considered a new publication each time the page is either accessed or downloaded. This technically means a new cause of action arises each time the web page is accessed.

However, section 8 of the Defamation Act 2013 introduced the single publication rule. This rule applies to subsequent publications made by the same publisher in substantially the same form and sets a limitation period for any claim to be made of one year from the date of the first publication of the statement. If the statement is republished by the same publisher in a way that is "materially different" from the original publication then that may give rise to a fresh cause of action (with its own one-year limitation from the date of republication), but this depends on the circumstances. The rule does not protect any other person who repeats or republishes the defamatory statement, who will bear separate liability for their publication.

Defendants

Section 10 of the Defamation Act 2013 states that a court does not have jurisdiction to hear and determine an action for defamation against anyone who was not the author, editor, or publisher unless the court is satisfied that it is not reasonably practicable for an action to be brought against the author, editor or publisher.

• "author" means the originator of the statement, but does not include a person who did not intend that his statement be published at all;
• "editor" means a person having editorial or equivalent responsibility for the content of the statement or the decision to publish it; and
• "publisher" means 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.

If the condition under section 10 is met then, under common law, a claim can be made against a secondary publisher (someone who participates in the act of publication, such as a printer or an ISPs). There are additional defences for ISPs in s.5 of the Defamation Act 2013 and in the Electronic Commerce (EC Directive) Regulations 2002. Other secondary publishers may be able to rely on a defence of innocent dissemination under common law, or unders.1 of the Defamation Act 1996 (i.e. that they had no knowledge or reason to believe that the action caused or contributed to the publication of a defamatory statement).

Republication and repetition

Under common law, every republication of a defamatory statement by a third party is a new libel even if the third party believes the statement to be true and names their source. This is so even if the republication just repeats the original material or refers to it.

Where such republication is reasonably foreseeable a claimant may be able to recover damages caused by the republication from the publisher of the original statement.

Meaning of the publication

The meaning of the publication (usually words) needs to be defined to establish that the statement is defamatory. Meaning is also important because the seriousness of the defamation may affect consideration of whether the publication has caused serious harm, and the assessment of damages. The defined meaning also establishes what must be proven to succeed in a defence that the statement is true.

Whilst recognising that each reader could understand the same words differently, it is for the court to determine a single or right meaning attributed to the words alleged to be defamatory. The publisher's intention is irrelevant.

The words will be given their ordinary meaning and considered using common sense and general knowledge so that the outcome is reached based on how an ordinary reasonable person with average intelligence, general knowledge, and experience would understand those words at the time of the publication. Evidence as to how the words in question were perceived by the public is usually not admissible.

When considering whether the words are defamatory, the court will assess the statement as a whole and take into account the way the alleged defamatory information is presented, the nature of the publication, the context of the words and the circumstances of each case. For example, if a statement is published in a newspaper, the court will review the whole article, including the headline and any photographs or captions.

Some of the principles for deciding the single meaning of the statement are as follows:

1. the governing principle is reasonableness;
2. the intention of the publisher is irrelevant;
3. the publication must be read as a whole, as other content may weaken or extinguish the defamatory meaning of the words complained of;
4. it is necessary to account for the context in which the words appeared and the mode of publication;
5. no evidence beyond the publication itself is admissible to determine the natural and ordinary meaning;
6. the hypothetical reader is representative of those who would read the publication; they are not naïve, but are not unduly suspicious or avid for scandal;
7. judges should have regard to the impression the publication has made upon themselves in considering what impact it would have made on the hypothetical reasonable reader;
8. when determining the single meaning, the court is free to choose the correct meaning and is not bound by the meanings advanced by the parties.

The team at Gowling WLG is experienced in advising on defamation cases. If you would like help navigating this complex area of law, please do get in touch with Charlie Bond or Nick Cunningham to learn how we can assist you.