Your rights in defamation and your right to protect your reputation

Your reputation is important and as such you should closely guard it. If someone says or writes something about you that is false and damaging it is likely that you will have a claim for defamation.

However, it is important to note that pursuing a defamation claim is very expensive and, as such, you should only pursue such a claim if 1) it is financially worth it and 2) you have been advised by a solicitor or barrister who is experienced in this area of law, that you have a good case.

WHAT THE CLAIMANT MUST PROVE

In order to bring a defamation claim, the person bringing the claim ("the claimant") must prove that the person against whom the claim is brought ("the defendant") has published defamatory material about him or her.

WHAT AMOUNTS TO A DEFAMATORY ALLEGATION?

A defamatory allegation is one that tends to make right-thinking people think the worse of the claimant. In addition, allegations that would lead people to avoid the claimant or expose the claimant to ridicule may be defamatory even if they involve no moral blame.

WHAT DOES PUBLICATION MEAN?

Publication means communicating the allegation to another person or persons. It could be one person, as in the case of a letter, or millions, as in the case of a national newspaper. There is no restriction on the medium in which the allegation is published. It could be published in writing, electronically (e.g. the internet) or, in one instance, by putting a waxwork of the claimant in the Chamber of Horrors. Generally the claimant will be named and the issue will not arise, but an unnamed claimant who can be identified by other means as the target of a defamatory allegation will be able to sue. So too might a person who shares the same name as the intended target of the publication.

THE DIFFERENCE BETWEEN LIBEL AND SLANDER

Defamation is the generic term for libel and slander. Where the defamation is in writing or in some other permanent form it is a libel. Where it is spoken or in some other temporary form it is a slander. In certain slander claims it is necessary for the claimant to prove financial loss. A claimant who proves these matters will win the case, unless the defendant can establish one or more of the following defences.

DEFENCES TO DEFAMATION:

The three most common defences are as follows:

1. Justification

This really means "truth". The defendant must show that the allegation complained of is factual as opposed to comment and is true or substantially true. Immaterial errors will not therefore prevent the defence from succeeding. Whether an error is material or immaterial is often a very subjective issue for the jury to decide, which involves balancing the seriousness of what has been proved against the seriousness of what has not been proved.

2. Fair comment

This defence protects statements of comments or opinion as opposed to statements of fact. The word "fair" is inappropriate, because the comment or opinion could be exaggerated or prejudiced provided it is honestly held. The opinion however, must be based on facts that are true or sufficiently true and relate to a matter of public interest.

3. Privilege

Qualified privilege is afforded to someone who finds themselves in a position in which it seems a necessity, either moral, legal, social, to impart certain information to another who has an interest. This covers situations where the information is false but may not seem so at the time to the person accused of defamation, and that they had a duty to report it before going into the process of verifying the information. This is so certain people, when finding themselves in a situation that could become defamatory, can communicate without the fear of being sued for defamation. This defence flounders, however, if the claimant can prove that the privilege was abused and the communication was used for malicious purposes. The honour of the defendant cannot be in question.

This applies to journalists reporting on the proceedings of a court so long as the information recorded is all fair and accurate. A recent development has been the use of this defence by newspapers who have to conform to criteria known as responsible journalism, which will normally require the information used to be of high public interest.

Absolute privilege allows for complete freedom of speech with no fear of being sued for defamation, and is applied to certain, special situations no matter how malicious or false the information is. All proceedings in Parliament and courts in England and Wales are afforded absolute privilege, as is communication between a solicitor and client.

MALICE

In the case of fair comment and qualified privilege, the defence will be lost if the claimant can prove that the defendant has been motivated by "malice". Malice means an improper motive for publication. To establish malice it is usually necessary for a claimant to show that the defendant knew that the publication was false or was indifferent to its truth. So a person who makes a mistake in good faith is not guilty of malice.

OTHER DEFENCES:

Secondary responsibility

The defendant has an innocent and secondary role in the publication of the defamatory statement. (s.1 of the Defamation Act 1996). This is a defence that may be available to internet service providers. It will be lost as soon as the defendant is put on notice that he is disseminating a defamatory statement.

Offer of amends

An offer to make amends volunteered by a defendant who published in good faith, which is not accepted by the claimant.

Limitation

The claimant's action has been brought too late. There is a one-year time limit for bringing a defamation claim.

Consent to publication

The claimant expressly or impliedly agreed to the publication taking place.

Accord and satisfaction (Waiver)

The claimant has expressly or impliedly agreed not to pursue an action against the defendant.

 

 

Disclaimer

Whilst every effort is made to ensure that the legal information contained on “YouandYourRights” is accurate, it does not constitute legal advice tailored to your individual circumstances. If you act on it, you acknowledge that you do so at your own risk. Neither the Proprietor nor Dean Dunham can assume responsibility and do not accept liability for any damage or loss which may arise as a result of your reliance upon it.

 

 

Last updated: 16 July 2012

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