Guidance Note – Defamation & Slander
This note sets out a general outline of what to consider when faced with a dispute or claim
regarding claims based on untruthful statements and damage suffered to reputation. This is
specific to claims dealt with in England and Wales. Although the facts and basis of claims are
always unique and varied, this note attempts to give a starting point and overview.
Libel – Defamation & Slander
Libel refers to all forms of statement that expose
the subject to hatred, ridicule or contempt. It is
broken down, in general terms, into defamatory
statements, having permanence such as in
writing; letter and newspaper and social media;
Facebook and Twitter. Spoken statements that
are transient are known as slander.
What is Libel?
This occurs when there is a publication of a
statement containing an untrue imputation
against the reputation of an individual, a
company or a firm. This untruth has to diminish
or undermine the victim’s reputation in the eyes
of right thinking members of society such that
they face hatred, contempt or ridicule.
First steps – How to instruct a lawyer
Griffin Law can advise you on the claims
available, the legal action to be taken, when to
take it and the costs involved. However, just like
when you want your car fixed and you present
the vehicle stating what is wrong with it, you
have to do the same with the statement. If you
wish us to help you, we must have some basic
information from the start. We need the actual
words stated. We need to know the context,
either by seeing the full published statement or
knowing the connections of the people involved.
We need to know when the statement first
appeared, who has seen it and where we may find
it (if still published). Finally, you must tell us
what damage this has caused you and continues
to cause.
Injunctions, anonymised claims and The PreAction Protocol for Defamation
Serious and scandalous statements that continue
to be published or are likely to be repeated can
require temporary and even permanent
injunctions to remedy. Griffin Law looks at these
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matters from the perspective of harassment as
well as libel and we have a track record of success
in obtaining injunctive relief from the Court.
Griffin Law has obtained the court’s approval to
anonymise proceedings in high profile and
sensitive cases.
The Pre-Action Protocol for Defamation promotes
the approach of seeking to settle disputes before
they end up in court. This will require the victim
to take steps to make contact with the author of
the statement and both set out the complaint and
seek ways to resolve the harm without resorting
to court action, whether by taking down a
published statement, apology and correction or
other remedy. We will advise you on the steps to
take to comply with the Pre-Action Protocol.
If the publisher or maker of the statement is
unknown, reasonable steps need to be taken to
identify them and seek contact with them so as to
open dialogue and request they identify
themselves. These are practical steps a court will
expect to be done and good reason needs to be
shown as to why it did not happen. A claim
issued too soon or an injunction applied for too
quickly could suffer defeat or costs penalties.
Uncovering anonymous defendants
Griffin Law has built upon a number of cases and
has extensive experience in seeking to uncover
the identity of those who anonymously publish
statements online. We have served claims via
Twitter and Facebook, including notices to take
down and desist as well as injunctions.
Griffin Law was the first law firm in the world to
obtain an order allowing service by Twitter.
Time Limits
Any claim must be started within 1 year of the
libellous statement being made/published. For
internet publications, the rule is that the time
runs from the first time it appears, not the last
time it is viewed. There is an exception that
allows claims beyond that cut-off, but they are
rare.
Although 1 year is the legal limit, this area of law
requires the victim to act as soon as practicable.
The longer the victim ignores the problem or did
not notice it, the weaker their claim may appear
to the court. If you are a victim, seek legal advice
immediately.
Serious Harm
Section 1 of the Defamation Act 2013 places the
need for evidence of serious harm suffered by the
victim to be at the centre of any claim. A growing
tactical weapon used by defendants since the Act
came into force is to apply at the very start of
court proceedings to strike out the claim for lack
of serious harm.
and to punish a wrongdoer. The court can also
order websites publishing defamatory material to
take it down.
If the parties settle the claim by agreement, they
may also decide to include a declaration of falsity
and an apology, which is not available at court. A
victim might insist on it as an alternative to
pursuing a higher level of damages at court. The
victim may also be awarded some or all of their
legal costs.
A defendant who has innocently made a libelous
statement can make an offer of amends. This can
act as a defence to a claim and help to reduce
damages. It will involve publishing an apology
and correction aswell as the payment of damages
and costs.
Defences
Meaning
Just as important as showing serious harm, a
core consideration of any claim is the meaning
contained in the statement. The court will expect
a single or correct meaning to be applied to the
statement, or each part of the statement, if
distinct allegations are raised.
This is the
natural and ordinary meaning a reasonable
person would find in the words, rather than the
meaning intended by the author or interpreted by
the victim.
It is not always the overt meaning that is the
problem as innuendo meaning can be brought
into the case when certain facts or circumstances
are known to the recipient of the statement that
distort the way they are received.
Defendants to proceedings will often apply to the
court to have the legal meaning of the statement
decided early on. If the court disagrees with the
meaning the victim has attached to the words, it
can fundamentally weaken the case.
The maker of a statement does not escape a claim
or take the benefit of another lesser meaning by
claiming to have merely passed on a statement.
Remedies available
A claimant does not need to establish that the
defendant intended to libel them. It having taken
place is enough to allow the case to proceed. This
means the onus falls on the defendant to
establish a legal defence.
Truth
The statement was substantially the truth. This
speaks for itself and is a full defence. Where the
statement contains more than one imputation
against the victim, each must be proven to be
truthful by the defendant. Your lawyer must
consider with you the effect of success where it is
not on all imputations.
Honest Opinion
A defence on this basis will only succeed if the
statement was presented as opinion and the basis
for the author holding that opinion is also
apparent. Finally, it must have been an opinion
that an honest person could have held at the time
of publication from facts already known. An
opinion cannot disguise itself as a statement of
fact and cannot retrospectively validate itself by
widespread agreement after publication. It is also
defeated if the author acted with malice because
the author did not genuinely hold that opinion.
Public Interest
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The remedies are one or more of damages, an
injunction, publication of a summary of the
court’s judgment and an order to remove a
published defamatory statement. Damages is the
primary remedy and can be used to compensate
A defendant must prove that the statement was
made in the public interest and the defendant
believed that was the case. Many victims will
argue that their right to a personal and private
life has been infringed (Article 8 of the European
Convention on Human Rights). The test comes
down to two things;


whether the author acted responsibly;
and
whether the publication was about
public life and conduct to a sufficient
degree to justify it being made.
An impartial report of a newsworthy item is
protected, even if the defendant did not establish
what the truth was.
Privilege
The law has deemed some statements as too
important for the greater good of society to be
actionable in defamation. This defence can be
divided into statement that attract absolute
privilege and those that attract a more limited or
qualified privilege. No claim can succeed where
there is absolute privilege (such as statements
made in court or given to the police) even if there
was dishonesty or malice behind them.
A
qualified privilege applies where the person who
makes a communication has an interest or a
duty, legal, social or moral to make it to the
person to whom it is made. Qualified privilege
can be defeated where malice was behind the
making of the statement.
Innocent Dissemination
This defence applies if a defendant was not the
author, editor or publisher of the statement and
passed it on having taken reasonable care in
relation to the publication and had no reason to
believe what was done had caused or contributed
to a libellous publication.
Risks of Not Complying with
the Pre-Action Protocol
There is no formal rule that stops a claim being
issued even where the Pre-Action Protocol has
not been followed. However, the courts will
punish claimants who ignore alternatives along
the way, primarily in the costs penalties that can
be imposed.
The biggest factor in almost all libel claims is the
costs involved, both those of your own legal team
and those you are at risk of having to pay for your
opponent. The Court has a very wide discretion
in respect of costs and even if you win, you could
be faced with paying your own legal cost or some
of the loser if the court believes your conduct was
worthy of criticism.
You may restore your
reputation, but if you fail to obtain and follow
appropriate professional advice, it will almost
certainly come at a cost that makes the
experience feel like a defeat.
Peer-reviewed academic statements in scientific
or academic journals now enjoy enhanced
protection from claims.
Internet defences
Those hosting social media and internet chatrooms or comment sections on their pages have a
defence to being an innocent disseminator of
what is often referred to as user-generated
content. A defence by a website operator for
publication of such content is only available if the
operator follows a well-defined procedure we can
advise upon.
Malicious Falsehood
Not all untruthful statements made about a
victim are libellous. If the statement is made
with an intention to maliciously harm and cause
the victim damage then it can amount to the
separate claim for malicious falsehood.
An
example is a business rival telling potential
customers that the victim is always unwell and
will be unable to fulfil orders due to needing to
take large amounts of time off sick from work. It
is not libellous – because we all face periods of ill
health - but is a lie which was maliciously spread
intending to cause the victim harm.
Contact Us
If you would like legal advice on any of the above, contact Dan Sherlock on 01732 525923 or at
[email protected]
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Griffin Law has taken all reasonable precautions to ensure that information contained in this document is
accurate. We stress that the content is not intended to be legally comprehensive and that no action be taken on
matters covered in this document without taking full, legal advice.