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Defamation, libel and slander: What can I do if someone attacks me or my business?
What is defamation of character?
Defamation is a statement about someone that lowers people’s view or opinion of that person. The person will have been identified and the statement published or distributed to a third party. A defence to a claim of defamation is that the statement was true, so it is often the case that any action for defamation is brought when the statement is untrue.
There are two types of defamation:
Libel refers to a defamatory statement that has been made in permanent form, such as via the written word.
Slander is defamation made in a transient way, usually verbally, by saying something defamatory.
How do you prove defamation?
To prove defamation, the claimant must be able to show that the statement in question was made by the defendant and that it has caused serious harm to the claimant’s reputation. When assessing the effect of the statement, the words used in the statement will be judged by their ordinary meaning and the normal standards of society.
The defamatory words must have been published in some way, whether online, in a printed publication or spoken verbally, and proof must exist of this. An experienced libel or slander solicitor will be able to put together the necessary proof of your case, including evidence of the damage caused.
The claimant must be able to show that the words were clearly about them, even if he or she is not named. This means that if a nickname or a clearly identifiable description is used, so that the reader knows to whom the statement refers, the claimant’s actual name need not be used.
In respect of slander, the claimant must show that there has been a financial loss if they wish to claim damages. With regard to libel, it is possible to win damages without a financial loss.
A company may sue for defamation, but under the ‘serious harm’ requirement, they will need to show that serious financial loss was caused.
It is for the defendant to prove that the allegedly defamatory statement is true, if they are relying on that defence.
Statements made online, whether they are on websites or social media, can be classed as defamatory. In fact, the number of online defamation cases has risen sharply in line with the popularity of social media platforms and review sites.
A truthful but negative review is not a breach of the law, but where an untrue and damaging statement is made, this could constitute defamation under the Defamation Act 2013.
What are the legal implications of re-posting or sharing defamatory content?
Generally, anyone who has been involved in the publication, re-posting or distribution of a defamatory content or statements is held to be liable for it. This is the case even if the information is attributed to someone else and means that if a second publication repeats what has already been printed elsewhere, they can also be sued if the statements are defamatory.
In the case of something that may have been automatically published, where the distributor was not aware of the defamation, they may be able to claim the defence of innocent dissemination.
What are the time limits for bringing a defamation claim?
There are strict time limits for bringing a libel or slander case. Proceedings must be brought within a year of the date of publication or broadcast of the defamation. Should you be unaware of the statement until later, you may be able to ask for the time limit to be extended.
Where publication is repeated, the time runs from the date of the first publication.
To ensure that you do not miss the deadline, you should speak to a solicitor as soon as possible. There is a pre-action protocol which must be gone through, including exchange of information and a genuine consideration of whether the matter can be settled by way of alternative dispute resolution. This means that the deadline will approach quickly, so it is important not to delay.
What are the defences to defamation claims?
There are a number of possible defences, as follows:
- The statement was true. It is for the defendant to prove this.
- The statement was not defamatory.
- The statement was on a matter of public interest and the defendant reasonably believed it to be in the public interest.
- The statement was an honestly held opinion, based on fact or experience, and was not made maliciously.
- In respect of slander, no loss was caused.
- The defendant did not make or publish the statement.
- The defendant innocently disseminated the information, for example, they were simply the printer of the offending material. This does not extend to an editor or publisher but may be used as a defence by Internet Service Providers.
- The statement did not refer to the claimant.
- The statement was privileged, for example, made during court proceedings or within an employee reference.
Whether or not the statement has caused serious harm to the claimant’s reputation is a matter for the court to decide. A defamation solicitor will be able to advise you on the likelihood of success in your case.
What happens if the defamatory comments are made by someone outside of England and Wales?
If a defamatory statement has been made about you or your business in another country, then if it has been made to an audience in England and Wales, you may be able to bring a case here. The court needs to be satisfied that, of all the places in which the statement has been published, England and Wales is clearly the most appropriate place in which to bring an action.
What are the remedies for defamation?
If you are successful, you will usually be awarded compensation and the defendant may be ordered to pay some or all of your legal costs. The court may also require a correction, retraction or apology to be published.
Before the hearing, the court may on occasion issue an injunction preventing publication or continuing publication of the statement, although this is not common.
Defamation can be seriously damaging to both an individual and a company reputation. A successful case will not only compensate you for this damage, but will also refute the allegations publicly and may result in a retraction and a printed apology.
Bringing a case can be complicated, with various pre-action processes to be complied with. If you would like to discuss the procedure and ascertain whether you have a case which is likely to be successful, we would be happy to hear from you.