As a result of the rapid growth of the internet, social media platforms and creation of handheld devices people can access information about a person or company from virtually anywhere. Following the growth of digital media, reputation management is even important in these times, as a person or company’s reputation can be tarnished in a matter of seconds following a single defamatory post or publication. It is therefore important that swift action is taken when this occurs.
In the current climate and marketplace, how you look online and in the real world can severely impact your personal life and career. When it comes to companies it can impact the public’s perception and in turn, impact profits and the ability to attract new staff or business. It goes without saying that reputation is important to maintain, and the law of Defamation is there to protection you.
Defamation is a false spoken or written statement that is harmful to a person/company’s reputation. There are two types of defamation; libel and slander.
Libel is a false statement that is published in print, which causes, or is likely to cause damage to a person/company’s reputation. It, therefore, concerns something that is written. Slander on the other hand is the publication of a defamatory statement by way of speech (for example during an interview) or in some cases, conduct.
It is important that you realise the danger of posting statements on social media sites about another person which are not fact based and provable. This is the equivalent of publishing a statement in a newspaper. Such an untrue statement can be actioned by the victim of that statement.
In order to succeed in a claim in Defamation, a Claimant is required to prove:
- the statement identifies the Claimant;
- as a result of the statement complained of an ordinary person would think less of the Claimant;
- the statement has been published to a third party; and
- the statement has caused or is likely to cause serious harm and loss.
In order to successfully defend a claim for defamation you will need to prove:
- the statement is true;
- if untrue it has not caused serious harm or loss; and/or
- it is made with qualified privilege.
You will not succeed in a claim for Defamation where the defamatory statement has only been made to you, but you then share this with third parties, for example on a social media site.
You should note that if the statement made is found to be true, you will fail in your action and will be ordered to pay the Defendant’s costs.
If the court determines that whilst the statement is untrue, either it has not been believed or it has not caused damage to your reputation, so that there is no loss, you may obtain a judgment or apology, but you may be unable to recover your costs.
There are circumstances in which a Defamatory statement made orally cannot be actioned; for example, during a trial or in Parliament, where such statements attract what is called Qualified Privilege
Following the introduction of the Defamation Act 2013, it is not enough for a claimant to establish that a statement is defamatory. Section 1 of the Defamation Act 2013, provides:
(1)A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.
(2) For the purposes of this section, harm to the reputation of a body that trades for profit is not ‘serious harm’ unless it has caused or is likely to cause the body serious financial loss.
Accordingly, in order to succeed in a defamation claim, a Claimant must also demonstrate that the publication of the statement has caused or is likely to cause serious harm to his/her reputation. In the case of a body trading for profit, to establish serious harm, it will have to show that the defamatory statement has caused or is likely to cause serious financial loss. If no financial loss can be proved, then whilst you may succeed in an action for defamation and may therefore have a judgement that you can publish (see below), you may be awarded damages of e.g. only £1 and could be ordered to pay some of the Defendants costs whilst having to bear your own legal costs.
The remedies available for defamation include damages, injunction relief, the publication of a summary of the court’s judgment and an order to remove the defamatory statement. Whilst the court does not have the power to correct a defamatory statement, parties often agree on an apology/retraction, or statement in open court during settlement discussions.
Time is of the essence
Whilst Claimants, in contractual or tortious claims generally have six years to bring a claim, the time limit for Defamation claims is more stringent. Section 5 of the Defamation Act 1996 requires a Claimant to a defamation claim to issue the claim within one year of the act complained of. Whilst the court has a discretion to disapply the limitation period it can only do so if it deems it equitable. It is therefore imperative that prompt action is taken with the right legal team, not only to avoid issues with limitation but to limit the spread of the publication.
If you believe you have been defamed or have been accused of defaming someone our team of specialist media law solicitors are here to help. We have a history of achieving successful settlements for our clients against an array of defendants and claimants which have included national newspapers and media outlets.
Subject to an initial review and risk assessment, we can offer a wide range of funding options which can include third-party funding and conditional fee agreements.