Defamation Act 2013
24th March, 2014
1 – Introduction
Defamation relates to publically made statements, either written or verbal, about a person, body or organisation which are both untrue and damaging to the reputation of the subject.
Slander refers to statements made verbally and libel to those made in writing.
Whilst most peoples’ experience of defamation is likely to be no more than what they read in the Sunday tabloids, it can be something that is just as damaging and prevalent outside the world of celebrity.
Imagine, for example, that somebody, perhaps a competitor, is saying negative and untrue things about your business to potential customers. Clearly, this is something that you would want to stop and the law of defamation prescribes when and how you can take action.
2 – Serious Harm
In the past, a defamatory statement was anything that was likely to make ‘right-thinking people’ think worse of the person that the statement related to. Alternatively, it can be statement that has exposed the person to hatred, ridicule or contempt. A statement will not be defamatory simply because it is offensive.
Since the coming into force of the Defamation Act 2013 on 1 January 2014, “a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.”
It is not enough, therefore, to show that the statement is both offensive and untrue. What is also required is that the context, extent and nature of the statement are such that significant damage has been caused or is likely to be caused.
In the instance of an employee, this could be evidenced (for example) by the loss of a job or position as a consequence of a defamatory statement having been made about them, (as long as there was some evidence linking the defamatory statement to the loss of the job).
In cases involving businesses, the claimant will need to show that the statement has caused, or is likely to cause, financial loss, eg. the loss of a contract or a drop in number of customers. Again the claimant will need to produce evidence linking the drop in sales to the defamatory comment.
3 – Truth and Honest Opinion
A statement cannot be defamatory, no matter how damaging, if it is true.
The Defamation Act 2013 provides a defence to the person making the statement if the imputation given by the statement is ‘substantially’ true. Therefore, not every word utilised must be true, but the essence of the statement must be.
The Act also offers a defence of honest opinion. To rely on this, the defendant will need to show that the statement is an honest expression of an opinion genuinely held and based on fact.
The defence will not cover situations where assertions of fact have been dressed up as opinions. It will only apply where people have genuinely proffered an honest opinion.
Prior to the Act, the opinion must have been in relation to a matter of public interest, but this is no longer the case. However, the Act does provide a defence where the statement maker reasonably believed that the publication of the statement was in the public interest and the statement itself relates to a matter of public interest. This defence is likely to be used by journalists and other members of the press.
4 – Websites
Defamation online has become a hot topic with sites such as Facebook and Twitter becoming omnipresent for both personal and business use.
The Defamation Act 2013 acknowledges this, and prevents a claimant from pursuing somebody who was not the maker of the statement (e.g. a website operator) unless it is not ‘reasonably practicable’ to go after the statement maker.
Take, for example, an individual who posts a comment on Facebook that ‘The goods provided by Company X are always of poor quality’. Company X will be expected to pursue the individual who posted the comment rather than Facebook, as long as the identity and whereabouts of the maker of the statement can be obtained without too much difficulty.
The position is slightly different for anonymous posts. Lets say @MrBadMouther tweets ‘The goods provided by Company X are always of poor quality’. It is likely that identifying the identity of the person behind @MrBadMouther is going to be problematic. What company X can do is send a notice (under the Defamation (Operators of Websites) Regulations), to the website operator, in this example – Twitter. Twitter will then have to supply the @MrBadMouther’s real name and address (with his consent) or remove the posting. If they do not comply with the notice, they leave themselves open to a claim in defamation.
One further point which is particularly relevant to online postings is that the period within which a defamation claim can be brought (12 months) will run from the first time the statement is made. Prior to the Act, this period would have reset every time the statement was repeated, for example, by way of a retweet.
5 – Dangers of McLibel
Many will remember the now infamous case of McDonald’s Corporation v Steel & Morris nicknamed the ‘McLibel Case’. It all began in 1986 when two activists of a small environmental group distributed a pamphlet making allegations regarding, amongst other things, McDonald’s poor environmental and human rights’ record.
McDonald’s reacted by issuing defamation proceedings which resulted in the longest case in English history (well over 10 years) and a judgment which saw Macdonald’s awarded £40,000 in damages despite having spent a rumored £10million in legal costs to obtain it. It was a Pyrrhic victory because, until McDonald’s bought the claim into the public domain by issuing its proceedings, the less than flattering allegations being made by the defendants had only reached a tiny audience. As soon as the public got wind of the proceedings, the allegations went viral in the media, such that there were very few people who weren’t aware of the allegations and McDonalds’ business started to suffer as people, not unexpectedly, started to believe that there is no smoke without fire. McDonald’s rumoured legal costs of £10M were probably a drop in the ocean compared to the sales they lost as a consequence of the claim.
The lesson here is that the publicity that can come from issuing defamation proceedings and the greater harm that it can do must be borne in mind when deciding whether to pursue a claim.
Defamation is by its nature an emotive area of law and there are a number of factors that need to be carefully considered before deciding what to do about a statement which you think could be defamatory. Similarly, being threatened with legal action over something you have allegedly said can be equally unpleasant and also requires careful thought. We are always more than happy to give our clients some initial advice and considerations when it comes to defamation matters.
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