Defamation law in England & Wales: Libel and slander explained

What is defamation?

Defamation is a civil wrong (tort) that protects a person’s reputation from unjustified harm caused by false statements.Defamation law in England & Wales strikes a balance between protecting reputation and safeguarding freedom of expression. A claimant must show that a statement has caused or is likely to cause serious harm to their reputation, and for businesses this means serious financial loss. However, libel and slander remain powerful legal tools where reputational damage is significant, particularly in the digital age where harmful statements can spread rapidly and widely.

Defamation is divided into two categories:

• Libel – written or otherwise permanent statements
• Slander – spoken or transient statements

Libel vs slander

Libel covers defamatory statements in a permanent form, such asnewspapers and magazines, online publications (websites, social media posts, blogs), and broadcasts (TV/radio, treated as permanent). Libel is generally actionable per se, meaning damage is presumed (though subject to the serious harm test).

Slander involves spoken words or gestures. Traditionally, a claimant had to prove actual damage, unless the statement falls within specific exceptions.

Key elements of a defamation claim

To succeed, a claimant must establish:

A defamatory statement: The statement must lower the claimant in the estimation of right-thinking members of society or cause them to be shunned or avoided.

Identification: The statement must refer to the claimant, either directly (named), or indirectly (recognisable to reasonable readers/listeners).

Publication: The statement must be communicated to at least one third party.

Serious Harm: The claimant must show that the publication has caused or is likely to cause serious harm to their reputation, which for businesses means serious financial loss.

Defences to Defamation

A defendant may rely on several statutory and common law defences:

Truth: If the statement is substantially true, the claim fails.

Honest opinion: Applies where the statement is clearly opinion, not fact, it is based on true facts, and an honest person could have held that opinion.

Publication on a matter of public interest: Protects responsible journalism (not limited to professional journalists) where the matter is of public interest and the publisher reasonably believed publication was in the public interest.

Privilege

• Absolute privilege: Complete protection (e.g. parliamentary proceedings, court hearings).
• Qualified privilege: Protection unless malice is proven (e.g. fair reporting of public proceedings).

Website operator defence: Applies to online platforms hosting user-generated content, subject to compliance with notice procedures.

The Pre-Action Process

Before issuing proceedings, parties are expected to follow the Pre-Action Protocol for Media and Communications Claims:

Step 1: Letter of Claim

The claimant sends a detailed letter which is compliant with the Pre-Action Protocol which includes the words complained of, why they are defamatory, the serious harm caused, and remedies sought.

Step 2: Response

The defendant responds within a reasonable time indicating whether the claim is admitted or denied, any defences relied upon, and whether settlement is possible.

Step 3: Alternative Dispute Resolution (ADR)

Parties are encouraged to resolve disputes through negotiation and/or mediation and or other forms of ADR.

Issuing Proceedings

If the matter is not resolved claims are issued in the High Court (King’s Bench Division). There is a 1-year limitation period from publication which is subject to the single publication rule.

The court will manage the case through:

• Statements of case (particulars of claim, defence, reply)
• Disclosure
• Witness evidence
• Trial (if not settled)

Remedies

If the claimant succeeds, the court may award:

Damages: Compensation for reputational harm and special damages (if financial loss proven).

Injunctions: To prevent further publication.

Order for Removal: Content may be ordered to be taken down (particularly online).

Apology or Correction: Sometimes agreed as part of settlement.

Key Practical Considerations

• Early advice is critical, especially for publishers
• Online publication increases risk
• Costs can be substantial, often driving early settlement following issue of proceedings
• Reputation management and public relations strategy often run alongside legal action