Defamation, Libel and Slander

What is defamation?

Defamation is an umbrella term used to describe libel and slander. A defamatory statement is one that would tend to lower a person’s reputation among right-thinking members of society; expose a person to hatred ridicule or contempt; or substantially and adversely affect other people’s attitudes towards them. In order to be defamatory, a statement needs to have caused, or be likely to cause, serious harm. For trading businesses, serious harm means ‘serious financial loss’.

What is libel and slander?

Libel and slander both concern the publication of material that adversely affects a person's reputation. The distinction between the two is that libel concerns "lasting" forms of publication, such as print, online or broadcasting. Slander concerns more transient forms such as spoken words or gestures. A slander will generally be actionable only if the claimant can show that it has caused tangible damage, although there are exceptions to this depending on the particular imputation.

Suing for defamation

If you have been the subject of a potentially defamatory statement or on the receiving end of an allegation of defamation, we advise you to seek legal advice from our Dispute Resolution team as quickly as possible.

Our legal experts will scrutinise your case and advise on how best to get it resolved. Very few cases go to Court. With the right management and strategy, cases can often be resolved relatively quickly and cost-effectively.

It is important to note that a statutory limitation period of one year applies to claims for defamation. Legal proceedings must be issued within one year of the date of publication of the defamatory statement. Time really is of the essence, meaning early advice is vital.

How to prove defamation

To bring a claim for defamation, you have to prove that the statement:

• is defamatory in nature (i.e. it would tend to lower you in the estimation of right-thinking people generally;
• has caused, or is likely to cause, serious harm;
• identifies or refers to you; and
• has been published to a third party.

Remedies for defamation

When it comes to defamation cases, there are several remedies that are available.

The available remedies are as follows:

• Damages: this is the main remedy for a defamation case and compensates a claimant for the damage caused to their reputation and for distress caused. Aggravated damages can also be awarded if the defendant has increased the claimant’s distress during the court proceedings. The court can take several factors into account, such as any action taken by the defendant to minimise damage – e.g. issuing a public retraction statement.
• Injunction: the court may grant an injunction after a trial where there is reason to believe that the defendant may publish the offending words further. Interim injunctions prior to trial are very rare in defamation cases. This is because of a long-established principle that it is in the public interest for freedom of speech to prevail and that, if a publisher gets it wrong, substantial damages will provide an adequate remedy further down the line.
• Publication of a summary of the judgment: a defendant may be ordered to publish a summary of any court judgment. If the two parties are unable to agree the wording, the court can determine it.
• Offer of amends: if a defendant has made an innocent mistake and does not want to defend the claim on a substantive basis, it can look to use the statutory ‘offer of amends’ procedure to resolve the claim. This procedure is aimed at providing a quick and inexpensive resolution of cases in which a defendant is prepared to admit that it has defamed the claimant, as well as entitling defendants who make such offers to a discount on the level of damages payable.

It is important to note the court does not have the power to require a defendant to correct the defamatory statement or declare the statement was false. While publishing an apology cannot be ordered by the court, it is often included in a package of remedies agreed by parties as part of a settlement.

Defending a defamation claim

There are a number of defences available to defendants facing allegations of defamation.

The available defences are as follows:

• Truth: if the statement complained of is substantially true, that provides a complete defence.
• Honest opinion: if the statement complained of is one of opinion and it indicated the basis of the opinion, then – if an honest person could reasonably have held that opinion at the time the statement was published – this will provide a complete defence. However, this defence will be defeated if the claimant can show that the defendant did not actually hold the particular opinion.
• Public interest: there will be a complete defence where the statement complained of was, or formed part of, a statement on a matter of public interest and the defendant reasonably believed that publishing the statement complained of was in the public interest.
• Absolute privilege: certain occasions are considered sufficiently important to allow people to publish material (even if untrue or malicious) without the possibility of facing a claim for defamation – e.g. statements made in parliament and within judicial proceedings.
• Qualified privilege: certain other occasions are considered sufficiently important to allow people to publish material (even if untrue) without the possibility of facing a claim for defamation, providing they have not done so maliciously – e.g. employment references and complaints to the police.

Media and pre-publication advice

If you are a media company and are concerned that an article – or part of an article – is potentially defamatory, we can advise on how to manage the risk and guide you through the possible outcomes. We can also advise on how best to craft the contentious statement to mitigate against a defamation claim.

Malicious falsehood

Malicious falsehood differs from defamation. A claim can be brought if someone maliciously publishes a false statement that causes financial loss. Unlike a defamation claim, you do not have to demonstrate your reputation has been damaged. The statement complained of does not have to be defamatory.