9.2 Defamation, Libel, Slander and Defences Lecture

Defamation is the act of publishing an untrue statement which negatively affects someone’s reputation. This wide reaching definition is limited within the framework provided by both common and statute law.

The key statute is the Defamation Act 2013, which defines defamation as: a defamatory statement; about the claimant; which is published; and which has caused or is likely to cause serious harm to the claimant’s reputation.

Libel or Slander?

Libel and slander represent different types of defamation. They are dealt with under the same principles discussed below.

  • Libel: Permanent defamatory statements, or communication which exists for longer than the time the original message is communicated.
  • Slander: Non-permanent defamatory statements, such as spoken word or gestures.

A claimant here must show a ‘special loss’, estimated in monetary terms, Speight v Gosnay [1891]; Lynch v Knight [1861]. There are two exceptions to this requirement. Firstly, where the imputation is that the claimant has committed a criminal offence punishable by imprisonment, Gray v Jones [1939]. Secondly, where the statements are calculated to disparage the claimant in his or her profession, office or business, Foulger v Newcomb [1867].


Elements of Defamation

The Statement Must Be Defamatory

The definition of ‘defamatory’ is to be found in the common law.

  • ‘A publication, without justification or lawful excuse, which is calculated to injure the reputation of another, by exposing them to hatred, contempt or ridicule’, Parmiter v Coupland [184].
  • Words which ‘tend to lower the plaintiff in the estimation of right-thinking members of society’, Sim v Stretch [1936].

The claimant must merely show that the statement has had a negative effect on the claimant’s reputation in the mind of an ordinary, reasonable recipient. In other words, they must show serious harm, or likely serious harm to reputation as per section 1(1) of the 2013 Act.

Words spoken in the course of raised passions normally do not constitute defamation, Penfold v Westcote [1806].

The Statement Must Be About the Claimant

This requirement is satisfied where it the claimant can be identified from the information included in the statement, Morgan v Odhams Press [1971]. It is also satisfied where the statement applies to a different individual to that which it was intended, Newstead v London Express Newspaper [1940], unless the statement refers to a class of persons, Knuppfer v London Express Newspapers [1944].

The Statement Must Be Published

This means ‘[t]he making known of the defamatory matter after it has been written to some person other than the person of whom it is written’, as long as this is intentional, Pullman v W Hill & Co [1891].

If it is reasonably foreseeable that a third party will read or receive a defamatory statement which is sent directly to the claimant, this will also constitute publication, Theaker v Richardson [1962].

The Statement Must Cause Serious Harm

A requirement brought into force by section 1 of the 2013 Act.

Defences

Truth

As per section 2(1) of the 2013 Act, if the statement is true, this forms a complete defence. The burden of proof is on the defendant, but they have only to show it is substantially true, Alexander v North Eastern Railway [1865].

Privilege

Individuals in certain roles are protected from defamation claims. This may be absolute or qualified.

Public Interest

As per section 4 of the 2013 Act, if a statement is made on a matter of public interest, and the defendant believes that publishing the statement is in the public interest, this will constitute a defence.

Honest Opinion

As per section 3 of the 2013 Act, honest opinion is not defamation.

Reportage

As per section 7 of the 2013 Act, there are a variety of situations in which simply reporting what another has said will be exempt from defamation claims.

Website Operators

As per section 5 of the 2013 Act, a website owner will not be liable for statements made by a user of their site.


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