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 promises to be an informative insight into the intricate world of freedom of expression and reputation protection in today's progressive society.
In this first article of the series, we look at the basics of defamation, compare how libel and slander are treated differently in the law, and take a brief look at the possible defences, remedies, and offers of amends to defamation. Our complete 'Libel Bible' series provides a closer look at the key elements of defamation mentioned in this article.
If you think you have been defamed, or indeed you have been accused of defaming someone else, you will need to understand the basics of defamation law to work out how to deal with the situation.
What is defamation?
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. The published subject matter giving rise to a defamation claim can be in written form (known as libel) or spoken form (known as slander).
Defamation claims may be brought by an individual and by legal entities such as companies or limited liability partnerships. However, they cannot be brought by an unincorporated association or any governmental body.
'Libel' or 'slander', that is the question!
Libel and slander are treated differently in the law, and both have key differences between them:
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Slander |
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Material published in permanent form including, for instance, cartoons, theatrical performances, films, and broadcasts.
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Material that is transient and not written down, such as spoken words or gestures.
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Actionable with proof of publication, but subject to the 'serious harm test' (see further below).
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Harder to prove publication because the material is not in any permanent form. Also subject to the serious harm test.
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General damages for loss of reputation are recoverable.
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Actionable if there is proof of special damage (i.e. directly caused financial loss).
If no evidence of special damage can be provided, slander is only actionable if:
- the words used suggest a criminal offence; or
- the words used are likely to disadvantage a claimant in any office, trade, or calling they hold at the time.
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What is the serious harm test?
For any defamation claim to succeed, a claimant must meet the "serious harm" test. This means that they must show evidence that they have been or are likely to be damaged to a serious degree. To determine the extent of the harm, a number of factors will be considered, such as:
- the nature and meaning of the defamatory statement;
- how widely it has been published;
- who has been able to access the publication; and
- the claimant's reputation, and how that has been affected.
A corporate claimant must prove that it has suffered or is likely to suffer serious financial loss, which means a loss that is significant in the context of its business.
For a more detailed look at serious harm, please see our later article.
Possible defences to defamation actions
There are a variety of possible defences, including truth, honest opinion, public interest, absolute and qualified privilege, and that the publication was a peer-reviewed statement in a scientific or academic journal; there is also a possible defence for operators of websites. We will be exploring these defences in a later article in this series.
A defendant can also respond to a claim on the basis that they accept liability and make a formal offer of amends; damages will then usually be awarded on a discounted basis.
What remedies are available?
It is almost always the case that an immediate ("interim") temporary injunction is not available; this is to protect the right of free speech. However, following a full trial a permanent injunction may be awarded if it is necessary to prevent further publication.
The court usually cannot order an apology or correction.
The main remedy is damages. General compensatory damages are awarded to compensate for loss of reputation and distress and to "vindicate" the claimant's reputation. The upper limit of general damages is presently limited to around £300,000, although most damages awards are much lower than that. The award may be adjusted either way by the court to take account of the defendant's behaviour, for instance, whether they withdrew the publication or persisted with it. Aggravated damages may be awarded.
Specific damages are also available for losses directly caused by the defamation – for instance, if outraged members of the public were to damage the claimant's property. But it is not often possible to prove that a loss is direct, for instance, loss of a business opportunity.
Exemplary damages may be awarded in order to signal and punish deliberately unlawful behaviour by a defendant, but these circumstances are rare.
The court can also order the defendant to publish a summary of the judgement. The wording and the manner of publication are for the parties to agree, but the court will decide if no consensus is reached. The court can also order any person who was not the author, editor or publisher of the statement to stop distributing or selling the material, including the operator of any website on which the material is posted.
Offer of amends
This is a statutory procedure that is available to a defendant who has made an innocent mistake and does not want to defend the claim further. The aim is to provide a quick and inexpensive resolution where the defendant is prepared to admit they have defamed the claimant. The defendant must offer to make and publish a suitable correction and apology, and to pay compensation and legal costs (if appropriate). If an offer is accepted, a claimant must not bring or continue defamation proceedings.
Thank you to Lucinda Wilton-Woodhouse for her work in putting this summary together.
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.