Guidance on defamation claims

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Guidance on defamation claims

In this article we cover some of the most frequently asked questions in regards to defamation.

What is defamation? 

Defamation is a false statement made by one individual about another. It is an unprivileged statement that is harmful to someone’s reputation, and published as a result of negligence or malice.

What would I need to prove in order to make a claim?  

In order to issue proceeding against the defendant, the following must be provable:

 

  1. That the defamatory statement has been made to at least one person other than the plaintiff
  2. That the author intended to publish the publication maliciously, knowing that the statement was false and actively disregarded the truth
  3. In the situation where you have been involved in the publication, for example giving an interview to a newspaper, you must prove the following –

– that you have taken ‘reasonable care’ in relation to the publication

– You were unaware, and had no reason to believe that the publication would lead to a defamatory statement.

4. The statement itself was defamatory. The court will assess the seriousness of the alleged wrong and measure how the statement has harmed the person’s reputation. Nevertheless, a mere insult can constitute defamation, depending on the context in which it was said. The court will look at whether a ‘reasonable’ reader or listener would understand the statement as a statement of veritable fact.

 

What is the possible defence if I have been accused of defamation? 

The most straightforward defence would be to prove that the statement is true. It is also a fair defence to say that in the context in which the publication was made, the comment was reasonable, or that the comment was not likely to cause a lowering of the individuals reputation.

 

How can the individual (s) / company make amends outside the court room?

The court will always take into consideration the degree in which the dispute was attempted to be resolved out of court. For example, if you have an issue at work you must be seen to have made a reasonable attempt to resolve your issue between you and the employer, and quite often this would go through the procedure of a grievance. The same is true of defamation, the assailant can offer to make amends and it is up to you if you wish to accept the amendment. The amendment must take the form of

– an offer in writing

– it must be ‘a suitable correction’ of the aggrieved comment

– the correction and apology must be published in a manner which is ‘reasonable and practicable’

-the defendant can pay the aggrieved with compensation

 

If the offer of amendment is accepted then the party receiving the offer may not bring or continue defamation proceedings in court. If the actions of the defendant are refuse the court will review the process of amendment and the sufficiency of the apology. This review will either reduce or increase the overall compensation.

 

What are the possible circumstances where my claim would be dismissed in court? 

-If the court believes that the claim has no realistic prospect of success

The prospect of success is considered in terms of:

-The extent to which there is a conflict of evidence

-The seriousness of the alleged wrong in relation to the content of the statement.

-The extent of the circulation

-Where the defamatory comment has not and is not likely to cause serious harm to the individual

 

 

What is the difference between Libel and Slander? 

Libel is defamation in an immutable form whereas Slander is defamation in a transitory form.

Most commonly, Libel tends to be written, broadcasted, or published online. Slander tends to be spoken word.

What’s the statute of limitation on defamation? 

The time limit for defamation is one year from the date on which the cause of action accrued.

Time limit extensions can be given to claimants with disabilities. Also discretionary extensions can be offered to claimants where the act of defamation did not become known to the claimant until after a period of one year.

 

Does the defendant or the plaintiff hold the burden of proof? 

The burden of proving the truth of the alleged defamatory statement lies with the defendant rather than the plaintiff. The plaintiff has the burden only of proving that the statement was made by the defendant. The plaintiff also does not require to prove that the statement was false.

 

When is a person not liable to be prosecuted for defamation? 

Some examples of individuals, who can not be considered the author of a statement include:

-A person who provides the service of printing the physical publication.

-A broadcaster for a live programme in which they have no control over the maker of the statement.

 

What is “Libel Per Se”?

This is libel which is prove on the face of the matter, without the need for any further explanation. Here are some examples –

 

A statement that falsely:

– imputes a crime punishable with imprisonment

– infers the presence of an infectious or contagious disease.

– intends to injure his or her office, calling or profession

– imputes a serious sexual misconduct (i.e. the chastity of a woman)

 

How can I make a claim for defamation? 

Claims for defamation can only be made in the High Court. Claims can be made for compensation or for an order to stop the perpetrator from repeating the allegations.

 

What changes have been made in the Defamation Act 2013? 

The Defamation Act now includes:

  • a ‘serious harm threshold’ which is aimed to help people understand when claims should be brought to court and discourage wasteful use of court time.
  • It offers protection for scientists and academics publishing peer-reviewed material in scientific and academic journals
  • Protection for those publishing material on a matter of public interest where they reasonable believe that it is in the public interest.
  • It also introduces a new process aimed at helping potential victims of defamation online, by resolving the dispute directly with the person who has posted the statement.

 

For further example of cases that have been through the high court. Please see details of the following judgements:

1.Thornton v Telegraph Media Group Ltd

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/QB/2011/1884.html&query=thornton+and+v+and+telegraph+and+media&method=boolean

 

2. Jameel v Dow Jones & Co

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2005/75.html&query=Jameel+and+Dow+and+Jones&method=boolean

 

3. Keith-Smith v Williams

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/QB/2006/860.html&query=keith-smith+and+williams&method=boolean