Defamation beyond an online publication

The Defamation Act 2013 (the ‘Act’) in particular section 1 of the Act sets out what is required for a statement to be considered as defamatory.

It provides that a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the person. Section 2 of the Act provides that it is a defence to an action for defamation for the defendant to show that the imputation conveyed by the statement complained of is substantially true.

I had a discussion with someone the other day who thought that defamation was an ‘online only’ area of law, which is far from the truth. Essentially, defamation is split into two types, namely libel and slander and both are considered as a publication of material which has a consequence of serious harm to the party of which it refers. This means that it could be a newspaper, television, social media post, poster in a shop window, letter to another party which has resulted in being open to the public; it is not an exhaustive list. Also, judicially there is not a fixed and common understanding of what constitutes a defamatory statement. The usual tests that are followed are seen in cases such as Sim v Stretch (1936) 52 TLR 669 HL at 671 which considers whether the statement had lowered the claimant in the estimation of right-thinking members of society. Also, there is Skuse v Granada Television [1996] EMLR 278 at 286) or Berkoff v Burchill [1996] 4 ALL ER 1008 at 1018. Which consider whether it is ‘likely’ to affect a person adversely in the eyes of the public. There is a whole array of case law to explore within this area and far beyond the scope of this note and those which were heard decades before social media was even a concept.

It is important to note, that defamation depends largely on the precise words used as to whether it is considered as defamatory. It does not matter where or how the words were used, they are considered as a society standard concept, at the time of publication and society in general, not a specific type of group of people.

If you have a defamatory question or believe that you have been subject to defamation which has resulted in serious harm to your character then do not hesitate to contact us (we do not charge for a conversation on the phone or a meeting to discuss and advise)

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