INFORMATION SHEET ON LIBEL AND SLANDER Essentially, libel

 PAYNES SOLICITORS INFORMATION DOCUEMENTS COPYRIGHT 2009 PAYNES SOLICITORS [email protected]‐solicitors.com www.paynes‐solicitors.com INFORMATION SHEET ON LIBEL AND SLANDER
Essentially, libel and slander are legal claims that protect an
individual’s reputation against defamation. In practical terms, a
defamatory statement is one which injures the reputation of another
person: that is if it “tends to lower him or her in the estimation of
right-thinking members of society generally”
Within what time period must libel or slander proceedings be commenced?
Usually within one year of the date of publication of the material containing the
defamatory allegations complained of. However, in exceptional circumstances the court
can extend this time.
What is the difference between libel and slander?
Libel concerns the written word and material broadcast on television or radio. Slander
concerns the spoken word.
Who can sue for libel or slander?
Individuals, companies, firms, charities and trade unions can all bring proceedings for libel
and slander. Governmental bodies (local authorities, central government bodies) and
political parties cannot - but if the allegation reflects on them, individual councillors, civil
servants and politicians can all bring actions in their own name.
What must a person or company prove in a libel or slander action?
When an individual or company brings a libel or slander action, they must show:1. that the words are defamatory of them;
2. that the words would be understood to refer to them by even one other person;
and
3. that the words have been published to a third party.
Page 1 A libel claimant does not have to prove that the words are false or to prove that he has in
fact suffered any loss. Damage is presumed. A slander claimant will need to prove that the
defamatory allegations caused actual damage, unless the slander is within certain
categories.
When are words defamatory?
There is no set definition of 'defamatory'. A statement may be considered to be
defamatory if it tends to do any one of the following:
a.
lower the claimant in the estimation of right-thinking members of society
generally;
b. disparage a claimant in his business, trade, office or profession;
c. expose the claimant to hatred, ridicule or contempt; or
d. cause the claimant to be shunned or avoided.
Whether or not a statement has that effect is measured against the standard of the
reasonable man generally and not a limited class of people who may have different
standards from the majority of members of society.
Common examples of what may be considered defamatory are allegations that suggest a
person is:
Immoral
Dishonest
Corrupt
Insolvent or in financial difficulties
Incompetent
The producer of shoddy goods
Standards of morality constantly change and so what would have been immoral twenty
years ago may not necessarily be so today.
Determining the meaning of words gives rise to a great degree of uncertainty in a libel
action. It is not only the superficial meaning that may be defamatory but also any 'hidden'
meaning which can be inferred. There are three levels of meaning to be aware of:
1. the 'natural and ordinary meaning', in other words the meaning on the face of the
words;
Page 2 2. inference, in other words a meaning that can be read between the lines without
any specialist knowledge; and
3. innuendo, a meaning which can be attributed to the words by readers who have a
specialist knowledge. The onus is on the claimant to show the facts giving rise to
the innuendo and that these facts are known to the readers. For example, to say
that a person eats meat is not defamatory on its face; if, however, some readers
know that the person professes to be a committed vegetarian, the statement may
be considered defamatory, suggesting he is hypocritical or dishonest.
The words must be put in their full context, including headings and captions to any
photographs. For the purpose of deciding whether words are defamatory, the intention of
the author is irrelevant. All that matters is the impression which the words give to
readers.
It is important to bear in mind that a person can sue for the repetition of a defamatory
statement made by somebody else. However if it is made absolutely clear, when the
words are read as a whole, that there is no truth in a rumour then this may be sufficient
to remove the defamatory 'sting'. Be aware however that it is often considered that there
is 'no smoke without fire' and it is possible that the publication even of rumour can be
defamatory.
Must the defamatory material refer to the claimant?
Yes. Clearly if someone is named they are identifiable to readers. However, even if the
claimant is not named he may still be identifiable to some readers. It is sufficient that he
is reasonably identifiable to even one person with whom he is acquainted. For instance,
people with whom an individual works may know to whom the allegation is referring from
its context.
If a defamatory allegation is made of a large, indeterminate group, no one individual may
be able to show that the words would be understood to refer to him. However, if the
group is determinate and comprises only a small number of people, it may be possible for
every member of that group to sue.
To how many people must the defamatory allegations have been published?
Making a defamatory allegation (whether orally or in writing) even to one individual other
than the claimant himself is sufficient to give rise to a claim. However, the Court has the
Page 3 power to stop a case proceeding in limited publication cases if it would be
disproportionate for them to proceed to trial.
Any communication to anyone other than the person actually defamed is, in law, capable
of constituting publication. A draft manuscript sent by an author to his or her editor is a
publication.
A claimant can take action against any or all of those involved in the process of
publication, including the author who wrote the book, the editor responsible for the
content of the book and the company which publishes it.
Who can be sued?
Any person, company or other legal body involved in publishing the defamatory material.
This includes the author, any editor and any publishing company. Sometimes, distributors
of defamatory material can also be sued.
Can the claim be defended?
There are three main defences available to a defendant in a libel action; namely,
justification, fair comment and privilege.
1. Justification
The defence of justification, or truth, is a complete defence to a libel action. The
onus is on the defendant to prove that the allegations are true.
Whilst the defendant does not, necessarily, have to prove the truth of each and every
fact, he does have to prove the truth of the substance of the allegation, the defamatory
'sting'.
2. Fair comment
Expressions of opinion, based upon true facts, made in good faith and without
malice on a matter of public interest may be protected. Note the distinction
between fact and opinion.
The facts must be proved to be true and the opinion, the subject of the fair comment
defence, must be honest. Therefore the facts upon which the comment is based must be
correct. It does not matter if the view expressed is extreme, so long as it is an honestly
held view and not malicious. For this purpose, 'malice' may be established if it can be
proven that the commentator did not genuinely hold the view he expressed.
Page 4 3. Privilege
The law recognises that there are circumstances in which it is in the public interest
to permit greater freedom of speech. Publication on a matter which is privileged is
protected from a libel action either by absolute privilege, which is a complete bar
to libel actions, or qualified privilege, which protects the statement so long as it
was published without malice. In the case of qualified privilege, malice may consist
in either:a. awareness of or recklessness as to the untruth of the statement (as above);
b. a dominant improper motive in making a statement believed to be true; or
c. misuse on the occasion for which privilege exists.
Absolute privilege
Examples of situations covered by absolute privilege include:
•
fair, accurate and contemporaneous reports of proceedings in public before UK
courts, the European Court of Justice, European Court of Human Rights and certain
international tribunals;
•
statements made in Parliament and official reports of parliamentary proceedings
(includes select committee proceedings but not statements made by MPs outside
Parliament);
This defence gives complete protection to fair, accurate and contemporaneous
court reports. It cannot be defeated by proof of malice. Generally a newspaper or
magazine article is treated as being contemporaneous if it is published as soon as
possible after the statements are made. This will normally be in the next available
issue following the proceedings.
Qualified Privilege
Qualified privilege exists "for the common convenience and welfare of society
because the law accepts that there are occasions when persons should be at liberty
to express themselves freely even when in doing so a third party is defamed."
Qualified privilege attaches to three main groups of publications:
Reports of proceedings listed in Schedule 1 Defamation Act 1996
Page 5 The Defamation Act 1996 contains two lists of publications which are covered by
qualified privilege.
Part I covers fair and accurate reports of public proceedings in legislatures, courts,
government-appointed public inquiries, international organisations or international
conferences anywhere in the world. The report does not have to be
contemporaneous. Part I also covers the fair and accurate publication of
documents authorised by those bodies, as well as any documents open to public
inspection.
Qualified privilege in respect of material covered by Part II differs from that in Part
I because, in addition to being capable of being defeated by malice, Part II
privilege will also be defeated if the claimant was not given a right to reply to the
defamatory allegation. Further, the reply must be published in a 'suitable manner'.
Part II covers fair and accurate reports of the following:
•
notices issued for the information of the public by the legislatures of
member States, the European Parliament, European Commission,
international organisations or international conferences;
•
documents made available by courts in member States or the European
Court of Justice;
•
public proceedings of local authorities, justices of the peace and other
bodies set up by statute in the UK or other member States;
•
proceedings of lawful public meetings in member States held for the
furtherance or discussion of a matter of public concern;
•
proceedings at general meetings of public companies formed in the UK or
other member States, and certain documents circulated to the members of
such companies; and
•
findings or decisions of a broad range of business, sporting, cultural and
charitable associations in the UK or other member States.
Reports of parliamentary and judicial proceedings
Fair and accurate reports of parliamentary and judicial proceedings are protected
Page 6 by qualified privilege at common law, whether published contemporaneously or
not. However, the common law has become less relevant in this area since the
Defamation Act 1996 came into force, as it confers qualified privilege on a wide
range of judicial proceedings (see above).
Defamatory statements made under a social, moral or legal duty to a person
who has a corresponding interest in receiving them.
This category of qualified privilege has proved difficult for the courts to define
specifically. Whether a social or moral duty exists depends on the circumstances of
the case, and the courts have not limited the interests to which the defence
applies, except to state that the interest must be a legitimate common interest
and not a matter of mere gossip or curiosity. Publications between an employer
and employees are likely to be covered by this privilege as are publications for the
purposes of disciplinary or other employer/employee proceedings and between a
trade union and its members.
In recent years the law has developed, under this category of qualified privilege, a
defence which is sometimes termed that of "responsible journalism on a matter of
public interest". The law recognises (Reynolds v Times Newspapers) that there are
occasions when the public interest requires that publication to the world at large
should be privileged. In determining whether the public at large has a right to
know the published information, the court should be concerned to assess whether
the information is of sufficient value to the public that, in the public interest, it
should be protected by privilege in the absence of malice.
In making the assessment, Lord Nicholls in his Judgment in Reynolds set out ten
"illustrative circumstances" which required to be considered:
"1. The seriousness of the allegation. The more serious the charge, the more
the public is misinformed and the individual harmed, if the allegation is not
true.
2. The nature of the information, and the extent to which the subjectmatter is a matter of public concern.
3. The source of the information. Some informants have no direct
knowledge of the events. Some have their own axes to grind, or are being
paid for their stories.
Page 7 4. The steps taken to verify the information.
5. The status of the information. The allegation may already have been the
subject of an investigation which commands respect.
6. The urgency of the matter. News is often a perishable commodity.
7. Whether comment was sought from the claimant. He may have
information others do not possess or have not disclosed. An approach to the
claimant will not always be necessary.
8. Whether the book/article contained the gist of the claimant's side of the
story.
9. The tone of the book/article. A report can raise queries or call for an
investigation. It need not adopt allegations as statements of fact.
10. The circumstances of the publication, including the timing."
What is the difference between libel/slander and malicious falsehood?
In malicious falsehood the claimant must prove:1. the words are false;
2. the words were published maliciously; and,
3. special damage has flowed from their publication unless the publication falls within
certain criteria.
Note: the words need not be defamatory. They must be false. Also note: the claimant
carries the burden of proving all three elements which makes the claim more difficult than
a libel claim.
Does normal libel law apply to emails and publications on the internet?
Yes.
If a Claimant is successful in a claim what might be recovered?
Compensation for damage caused by the defamatory publication and to vindicate
reputation, an apology often in agreed terms and an undertaking not to repeat the
defamatory allegations. The damages can be from one penny to upwards of £250,000
Page 8 depending on the seriousness of the allegations and the way those being sued behave. In
addition, any actual loss caused by the defamatory publication can be claimed.
How expensive are libel and slander proceedings?
Substantial proceedings are very, very expensive. If we considered you had a case worth
pursuing we may be able to assist using our Conditional Fee Agreement (no win, no fee)
scheme. It must be remembered that this would not shield you form paying the costs of
the other part if you lost the case – there are companies providing “after the event” legal
expenses insurance but your case would have to be a very strong one for an insurance
company to take the risk.
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