A defamatory statement is one which is false and causes damage to a person’s reputation or otherwise does them harm.
Libel is the term given to defamation in a permanent form, such as in print. Since the Broadcasting Act 1990, this also includes statements that are broadcast on the radio or television, even though the words are in this case spoken rather than written. It is the tangibility of the statement that really matters – libel deals with statements that are recorded. Defamation in a transitory and non-permanent form (eg, defamatory statements which are spoken) is known as slander.
Libel can also include comments made online, including comments in emails or on websites. Usually comments made in a chat room or on a bulletin board/forum are considered slanderous, since their usage resembles casual conversation.
For a person to bring a claim of defamation, it must be shown that the statement:
If someone claims that a person has made defamatory statements about them, the onus is on the person who made the statements to prove that the statements are true.
If libel is proven, damages are then assessed, which are affected by numerous criteria including:
‘General damages’ are awarded with the aim of vindicating a claimant and compensating them for their lowered reputation and their injured feelings.
‘Special damages’ aim to compensate the claimant for reasonably foreseeable financial loss (eg, the loss of a contract).
Courts also have the power to order websites to take down defamatory statements or prohibit further distribution, sale or exhibition of defamatory statements.
Slander differs from libel in that the claimant must usually prove that the defamatory comments have had an adverse effect upon their reputation, which may entail proving that the statement resulted in financial damage or lost business.
However, there are circumstances where no damage needs to be proven. This includes, for example, allegations that relate to:
Under the Defamation Act 2013, s 3, it is a defence against an action for defamation if the defendant can show that:
Other defences include:
Defamation is now a civil action only in the UK since criminal defamation was abolished by the Coroners and Justice Act 2009. Section 73 of that Act, which came into force on 12 January 2010, brought an end to the criminal defamation offences of sedition and seditious libel, the offence of defamatory libel, and the offence of obscene libel. It was widely felt that the UK’s retention of the archaic criminal offence of defamation justified its use by foreign countries to restrict free speech and to prosecute and imprison journalists.
A person who takes another person’s statement as fact and repeats it can also be sued for defamation. Victims of defamation should be aware that a frequently used defence by the accused is to claim that when the false information was printed/said elsewhere at any earlier date, the person did not complain. It is therefore prudent for a victim of libel to make a complaint as soon as the statement is first disseminated.
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.
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