Defamation of Character: Online libel lawyers’ guide
Understanding Defamation of Character Laws
Due to the virtual nature of interactions, defamation of character in the digital world presents unique challenges, including the potential for anonymity. Understanding the law of defamation of character in the virtual world, where digital reputation and trust are key drivers to success, is critical. Defamation, whether in the form of slander (spoken) or libel (written), can have profound impacts, and it is imperative to navigate these waters with legal knowledge and strategies if you are to leverage reputation for business success.
Protecting Your Online Reputation: Internet Libel Lawyers’ Insight
The Defamation Act 2013 is the primary source of defamation law in the United Kingdom. Since it came into force on 25 April 2013, the statute's text has remained unchanged through amendments or repeals. However, while the law itself has not altered, case law and legal interpretations related to it have evolved over time. For example, the Supreme Court has issued landmark judgments regarding the "serious harm" test introduced by the Act, clarifying how the seriousness of harm is assessed and how the Act's provisions apply to specific situations. Judges have also made rulings that provide further guidance on various aspects of the Act, such as the meaning of defamatory statements, the application of the "truth" defence, and the single publication rule.
This article serves as a starting point for understanding the intricacies of defamation of character, including its legal elements, various forms, defences, and the social implications involved, particularly in today's digital landscape.
I. Introduction
What is the definition of defamation?
Defamation of character involves making false statements about an individual that damages their reputation. It can be categorised into two primary forms: libel and slander. Libel pertains to defamatory statements made in written or published formats, while slander refers to spoken statements. Each form presents its distinct challenges and implications.
Importance of Reputation
A good reputation plays a vital role in an individual’s and/or a business’s ability to achieve social and financial success. A denigrated reputation can result in lost business, strained personal relationships, and emotional distress. Understanding the mechanisms of defamation is thus essential for safeguarding reputation when it is under attack maliciously due to business rivalry, or envy. The darkest driver is what Colleridge says is Iago’s motive for destroying Othello’s reputation in the great Shakespearean tragedy - he says that Iago was “motive-hunting of [a] motiveless malignity” and that, in fact, Iago was “a being next to a devil, but not quite a devil”. The meaning is that some seek to damage and denigrate not only because of envy or jealousy but also due to a “motiveless” hate driven by an inexplicable dislike for someone else, due to some irrational emotional trigger such as dislike of the person’s race or gender.
This article argues that a delicate balance must be maintained between the freedom of speech and the right to protect one's reputation. While open discourse is vital in a democratic society, it becomes critical to recognise when statements cross the line into defamation, causing unjust harm.
Scope and Limitations
The scope of this exploration will primarily focus on English legal jurisdictions and the nuances of defamation law as it applies to both libel and slander. We will discuss general principles and touch on specific legal cases but not in detail, and we will not refer to regional variations, thus acknowledging limitations in the broader applicability of the findings.
II. Legal Elements of Defamation
Understanding the legal components is central to any discussion on defamation. Several key elements must be established to prove a case of defamation.
False Statement of Fact
Defamation requires a demonstrably false statement. Statements of opinion are not typically actionable, as they cannot be proven true or false. Instead, the statement must constitute a claim of fact that can be objectively proven wrong.
Publication to a Third Party
For a statement to be considered as defamatory, it must be communicated to at least one person other than the individual being defamed. Private comments or statements made without external dissemination generally do not qualify as defamation, as they do not fulfil the publication requirement.
Harm to Reputation
The false statement must harm the individual's reputation. This can manifest in several ways, including loss of income, emotional distress, or damage to professional standing. The legal system seeks to determine the extent of harm caused by the defamatory statement.
Fault
The threshold for proving defamation is higher if the person defamed is a public figure, such as a celebrity or politician. The claimant must demonstrate "actual malice," meaning that the defendant either knew the statement was false or acted with reckless disregard for whether it was false or not. The aim is to protect freedom of discourse about public figures.
Identifying the Defamed Individual
The statement must refer to the individual who claims to have been defamed. This means that the defendant's words must identify the individual involved, either explicitly or implicitly.
III. Types of Defamation
Exploring the types of defamation is crucial to understanding how it operates in practice.
Libel
Libel refers to defamatory statements written, published, or otherwise permanently recorded. Because libel is tangible, it is often easier to prove than slander due to documentary evidence. Examples of media for libellous statements include newspaper articles, blog posts, social media posts and messages, such as on YouTube, TikTok, Facebook, Instagram, and X, and messaging apps such as WhatsApp.
Slander
Slander, in contrast, refers to spoken defamatory statements. These statements may occur in conferences, casual conversations, or public speeches. Proving slander can be more challenging due to its transient nature, as it often relies heavily on witness statements rather than documented evidence.
Examples of Defamatory Statements
Examples of statements that could be considered defamatory include falsely accusing someone of a crime, making disparaging remarks about a person's professional abilities, or spreading rumours that could negatively impact an individual's personal relationships.
IV. Defences to Defamation
Understanding the possible defences to allegations of defamation assists in effectively handling defamation claims.
Steps to Take When Facing Online Defamation Issues
Truth
The best defence against a defamation claim contained in the Defamation Act 2013 s.2, is truth. A defamation claim will likely fail if the defendant proves the statement is true. The burden of proof lies with the defendant.
Several cases have demonstrated the successful use of the truth defence. For example, in Shakeel Begg v BBC [2016] EWHC 2688 (QB), the court agreed with the BBC's defence that the statements about the claimant were substantially true, relying on several speeches and statements to support this claim. In this case, the BBC broadcast statements on "Sunday Politics" describing the claimant as an extremist speaker who promoted religious violence. The BBC argued that these statements were substantially true based on nine speeches and statements made by the claimant. The court agreed with the BBC on six of the nine statements and found the overall evidence to be an "overwhelming case of justification. "
Similarly, in Hay v Cresswell: [2023] EWHC 882 (KB) , a sexual abuse victim successfully defended a libel claim by her perpetrator using the truth defence. The court found the published statements to be true and in the public interest. See below for more on the importance of ‘public interest’ in defamation cases.
In Colleen Rooney v Rebekah Vardy: [2022] EWHC 304 (QB), Mrs. Rooney successfully defended herself against a libel claim brought by Vardy, with the court ruling that the statements in question were true. The Rooney case is discussed in more detail in a separate article on our blog.
In Depp v News Group Newspapers: [2020] EWHC 2911 (QB) the court found that the defendant established that the statements that Johnny Depp was a wife beater were substantially true, and that the inability to prove the truth of some incidents did not prevent the defendant from establishing the substantial truth of their published statements.
Honest Opinion (previously Fair Comment)
The defence of honest opinion allows individuals to express opinions on matters of public interest freely. This defence is often used in critiques of public figures and issues, reflecting society's interest in open discourse, provided that such comments are based on true facts.
The key is distinguishing between a factual claim (which must be proven true) and an expression of opinion.
In Telnikoff v Matusevitch [1992] 2 AC 343, the House of Lords established that for a comment to be considered "honest opinion" and therefore a valid defence to a defamation claim, it must be based on true facts. This means that the comment needs to be based on facts that are, in fact, true, not merely a statement of opinion.
In Spiller v Joseph (2009): [2010] UKSC 53,the Supreme Court considered the scope of the fair comment defence and its successor, honest opinion, highlighting the importance of indicating the basis of the opinion.
In Turley v UNITE the Union (2019): [2019] EWHC 3547 (QB), while not a successful "honest opinion" defence, this case demonstrates the importance of a factual basis for an opinion in the context of defamation law. The case highlights that while a statement of opinion is protected under the Defamation Act 2013, the opinion must be based on facts, or asserted facts, that exist at the time of publication.
In Campbell v Dugdale (2020): [2020] CSIH 27, the Inner House of the Court of Session held that the fair comment defence applied in a case involving a blogger and a former Scottish Labour Party leader.
In Riley v Murray (2022): [2022] EWCA Civ 1146, this case emphasised that not only must there be facts on which an honest person could hold the opinion, but the basis of that opinion must be indicated in the statement itself.
In Dyson v MGN Limited (2023): [2023] EWHC 3092 (KB), provides essential authority on the interpretation of section 3(4)(a) of the Defamation Act 2013. Section 3(4)(a) of the Defamation Act 2013 sets out a condition for the "honest opinion" defence. To successfully rely on this defence, the defendant must demonstrate that an honest person could have held the opinion based on any facts that existed at the time the statement was published. This essentially means the opinion must be grounded in factual truths that existed before the statement's publication. The High Court interpreted the third condition for establishing the honest opinion defence.
Privilege
Certain statements may be protected under the concept of privilege, which can be absolute or qualified. Absolute privilege applies in specific legal contexts, such as during judicial proceedings or parliamentary debates, where witnesses and participants cannot be sued for defamation. Qualified privilege may apply to statements made in good faith, with justified interests in their dissemination. Examples of successful privilege defences include statements made by employers in employment references, communications between teachers and parents, and reports made by social workers or the police during their duties. The key is that the statement must be made in good faith and be relevant to the duty and interest at play.
Examples of successful privilege defences:
Employment References: An employer's reference for a former employee may be protected by qualified privilege if it's honest and relevant to the employee's suitability for future employment.
Communications between Teachers and Parents: Statements made by teachers to parents regarding a student's conduct or academic performance are often protected, as they are considered to be in the interest of the student's education and well-being.
Reports by Social Workers or Police: Statements made by social workers or police officers in the course of their duties, such as reports about a child's welfare or a crime investigation, are generally protected by qualified privilege.
Statements Made to Defend Oneself: If you are falsely accused and make statements to defend yourself, those statements may be protected by qualified privilege if made in good faith and relevant to the accusation.
Statements Made in Legal Proceedings: Statements made during legal proceedings, such as during a trial, are often protected by absolute privilege.
Statements Made in Parliamentary Debate: Statements made by Members of Parliament during parliamentary debate are also protected by absolute privilege.
Reports of Court Proceedings: Fair and accurate reports of public court proceedings, if published contemporaneously, are often protected by statutory privilege.
Offer of Amends
The “offer of amends” is a statutory defence to defamation in England and Wales under the Defamation Act 1996. Despite the introduction of the Defamation Act 2013, it remains law. This provision allows a defendant to accept liability for a defamatory statement and to rectify the harm through correction, apology, and payment of damages, potentially leading to a reduced settlement. It is essential to understand that it is a limited defence and may not always result in the complete dismissal of the claim. The offer of amends allows the defendant to admit liability early in a defamation claim and propose a remedy, such as an apology, correction, and/or damage payment. The offer must be made before or when the defence is served.
Examples of successful offers of amends:
In Warren v Random House Group Ltd: [2007] EWHC 2856 (QB)A boxing promoter sued over an autobiography, and the publisher (Random House) made an offer of amends for one of the alleged defamatory statements, leading to a settlement.
In Tesco Stores Ltd v Guardian News & Media Ltd and Rusbridger: [2008] EWHC B14 (QB)Tesco initially refused to accept the offer of amends, but eventually settled, demonstrating the potential for an offer to lead to a resolution.
General examples: If a newspaper publishes an inaccurate statement about a person's financial dealings, they could offer amends by publishing a correction, apologising for the error, and potentially paying damages.
Key aspects of an offer of amends
Acceptance of liability: The defendant must acknowledge that the statement was defamatory.
Correction and apology: The offer must include a suitable correction and a sufficient apology for the defamatory statement.
Publication: The correction and apology must be published in a reasonable and practicable manner, considering the original publication.
Damages and costs: The offer must include an offer to pay reasonable damages (if any) and the claimant's costs incurred before the offer and in connection with the claim.
V. Social and Ethical Considerations
The implications of defamation extend beyond the legal realm and into social and ethical dimensions.
Balancing Freedom of Speech and Reputation
The balance between freedom of speech and protecting reputation remains a contentious issue. While free speech is a cornerstone of democracy, it must be paired with accountability, especially when statements cause real harm to individuals.
Public Interest
The concept of public interest plays a pivotal role in defamation cases, particularly concerning public figures or matters of societal significance. Courts often evaluate whether the statements made serve the public good, permitting a certain degree of critique without infringing upon reputational and fundamental human rights.
While public interest is a significant factor in defamation cases, it is not a complete defence like truth or qualified privilege. Therefore, it is not included in the list of defences. Instead, the court will evaluate it as part of determining whether a statement was published responsibly and in the public interest, potentially mitigating liability.
In several defamation cases, public interest has successfully protected defendants, particularly journalists, who made statements that were considered defamatory but were ultimately found to be in the public interest. Examples include the Banks v Cadwalladr case, where Carole Cadwalladr's statements about Arron Banks were deemed in the public interest despite being defamatory, and the Hay v Cresswell case, where Cresswell's statements regarding abuse in the tattoo industry were also considered in the public interest.
Here's a more detailed look at these and other relevant examples:
1. Banks v Cadwalladr: [2022] EWHC 1417 (QB)
Arron Banks, a Brexiteer, sued Carole Cadwalladr, an investigative journalist, for defamation over statements she made in a TED talk and a tweet. The court ruled that Cadwalladr's statements, while defamatory, were justified by the public interest in her reporting on issues related to Brexit and the UK's relationship with the EU. The court considered the context of the statements, including the publication of documents by the National Crime Agency and the Electoral Commission, which supported the argument that the statements were in the public interest.
2. Hay v Cresswell: [2023] EWHC 882 (KB)
Ms. Cresswell, a whistleblower, made statements about alleged abuse in the tattoo industry, which were deemed defamatory by Mr. Hay. The court ruled that the public interest in reporting on widespread abuse in the tattoo industry justified Cresswell's statements, even though they were considered defamatory. The court found that Cresswell reasonably believed her publications were in the public interest.
3. Doyle v Smith: [2018] EWHC 2935 (QB)
While the court found a blogger's statements about a claimant to be defamatory, the public interest defence was not successful in this case. The court held that the statements fell short of a "Chase level 1 imputation" and were "significantly graver" than "Chase level 2," meaning they were more serious than simply a matter of opinion.
4. Serafin v Malkiewicz: [2020] UKSC 23
In this case, the court initially ruled in favour of the newspaper, arguing that the public interest defence was applicable and that the claimant had not suffered "serious harm". However, the Court of Appeal later overturned this decision, ruling that the newspaper had not established the public interest defence and that the claimant had suffered serious harm.
Key Considerations for the Public Interest to be significant:
The statement must be, or form part of, a statement on a matter of public interest.
The defendant must reasonably believe that publishing the statement was in the public interest.
The public interest in publishing the statement must outweigh the harm caused to the claimant's reputation.
The Impact of Online Defamation
Online defamation presents unique challenges, as the rapid dissemination of information can significantly escalate harm. The viral nature of social media can amplify reputational damage and complicate legal recourse, requiring individuals to remain vigilant about their online presence.
The Role of the Media
Media outlets have the responsibility to balance reporting with the risk of defamation. Ethical journalism requires accuracy and fairness in reporting, which guides how potentially defamatory statements are addressed and reported.
FREQUENTLY ASKED QUESTIONS
1. What is the meaning of defamation of character?
Answer: Defamation of character refers to a false statement that damages a person's reputation. It can happen through spoken words (slander) or written statements (libel).
2. Is a defamatory post on TikTok or Instagram, a tweet, or a WhatsApp message considered libel or slander?
Answer: A defamatory post on TikTok or Instagram and written messages like tweets or WhatsApp messages are generally considered libel, as they are in written form and can be published.
3. What is the definition of defamatory libel?
Answer: Defamatory libel is a written statement that falsely denigrates somebody’s character in the eyes of the public, damaging their reputation. It applies to both businesses and people. To prove it you must meet specific legal criteria and it can be grounds for a lawsuit.
4. Can I sue for libel defamation?
Answer: Yes, if you have been harmed by a false written statement about you, you can sue for libel defamation.
5. How much can I claim for defamation of character?
Answer: The amount you can claim for defamation of character varies based on the specifics of the case, including the severity of the damage to your reputation and any financial losses you may have incurred.
6. How do I sue for defamation in the UK?
Answer: To sue for defamation in the UK, gather evidence of the defamatory statements, consult a solicitor, and file a claim in the appropriate court, following all required legal procedures.
7. Why choose PAIL Solicitors?
Answer: Choosing PAIL Solicitors means you have access to experienced legal professionals specialising in online defamation cases. We prioritise client care, providing tailored advice and support throughout the legal process, ensuring that your case is handled with expertise and diligence.
8. How much do you charge?
Answer: Our fees vary depending on the complexity of your case and the specific services required. We aim to provide transparent pricing and will discuss costs upfront during your initial consultation.
VI. Conclusion
In summary, defamation of character remains a powerful legal and social issue, especially in our interconnected world. It encompasses various elements and types, each with legal defences that must be understood by both potential defamers and those seeking to defend their reputation.
Future Directions
A continued examination of defamation law, particularly in the context of digital platforms, is necessary to adapt legal frameworks to the modern landscape. Future discussions should consider the evolving nature of speech in the digital age and how laws can effectively protect individuals, including the respect for privacy and family life, without stifling free speech expression.
Final Thoughts
In conclusion, the significance of defamation law in safeguarding personal and professional reputations cannot be overstated. As individuals and businesses navigate an increasingly complex environment, understanding their rights and the available legal recourse is vital. By empowering themselves with knowledge and taking proactive steps in reputation management, individuals can better protect their integrity in an age where words can have lasting repercussions.
Useful Links
Online Defamation Legal Services Page
Meet The Team: Mr Peter Adediran; Ms Maya El-Husseini; Ms Gabrielle Felix; Ms Poppy Harston
Contact Us for More Information
For a quotation, please contact us at (020) 7305-7491 or [email protected]. We would be delighted to assist you. The writer is Mr Peter Adediran, the owner and principal solicitor at PAIL® Solicitors and a specialist in online reputation-related law. Subscribe to our newsletter to get blog post updates and other information about the firm straight to your inbox.