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Defamation in this legal jurisdiction exists to provide redress for unjustified injury to the reputation of a natural person or company. Defamation has largely developed through common law (Judge/Court made law). However, parts of the law have been codified and/or reformed with various statute (Parliament made law). Before the Defamation Act 2023, defamation was substantially governed by common law. In 2010, Lord Phillips stated:
“Over forty years ago Diplock LJ referred to the ‘artificial and archaic character of the tort of libel’. Some twenty years on Parker LJ commented on the absurdity of the ‘tangled web of the law of defamation’. Little has occurred in the last twenty years to unravel the tangle.”
Lachaux v Independent Print was the Supreme Court’s first opportunity to examine the Defamation Act 2023 and Lord Sumption stated:
“Defamation is an ancient construct of the common law……Its coherence has not been improved by attempts at statutory reform…..The Defamation Act 2013 is the latest in this history.”
When Supreme Court Justice’s refer to defamation as a tangled web state has yet to be unraveled, even with statutory reform, it highlights the difficulty for the general public to understand the complexities of defamation. In a democracy, all law should be put in the simplest and clearest way that it is compatible with its aims. Considering that anyone with a social media following is now capable of publishing defamatory statements online, the complexities of the law of defamation should be of concern.
So, what is defamation?
Defamation is a generic term for two torts which are libel and slander. Libel is a publication in a permanent form which would traditionally be writing printed in a newspaper. Slander is a publication in a transient form which is generally the spoken word. However, spoken word which is broadcast, or spoken in the course of a performance of a play are libel.
Subject to two exceptions, for a claim in slander, the claimant must prove that special damage has flowed from the slander to succeed. The two exceptions are where the words impute a crime; or where the words disparage the claimant in any office, profession, calling, trade, or business, held, or carried on, at the time of publication. Libel is actional per se meaning without proof of special damage. It has been suggested that both libel and slander which is actionable without proof of special damage, being actionable per se has been negated by the requirement of serious harm provided by the Defamation Act 2023. However, the Supreme Court has stated that the requirement of serious harm, including that of a body that trades for profit, which requires serious financial loss, is not the same as special damage. Special damage means damage representing pecuniary loss to interest other than reputation.
The defamatory statement must be published to a third party, and it must identify the claimant, although identification may not occur directly by name. Any person or company involved in in the publication can be sued in libel or slander which is the author, editor, or publisher.
Courts have provided several definitions for what is consider defamatory which will not be discussed in this article. However, all definitions now need to be considered against the serious harm test provided by the Defamation Act 2023. (See previous articles written by Samuel Killoran which discuss serious harm for individual and bodies that trade for profit.)
A defendant can defeat a claim by establishing one of the available defences to defamation. In civil claims it is common for the claimant to prove their case to succeed at trial. In defamation, the claimant alleges that the publication is false and that is has caused or is likely to cause serious harm, and the burden of proof is on the defendant to establish the truth of the allegations, or that their publication constitutes honest opinion, or that they were protected by privilege. The Defamation Act 2013 abolished and replaced the main common law defences and reformed aspects of privilege. (See previous articles written by Samuel Killoran which discuss the available defences.)
Global Publications
Publications on the internet can span the entire world which creates complexities regarding jurisdiction, which is further complicated by the lack of consistency with the law of defamation in different jurisdictions. Defamation even differs within the three jurisdictions of the United Kingdom. Scotland only adopted sections 6 and 7(9) of the Defamation Act 2013. However, the Defamation and Malicious Publication (Scotland) Act 2021 brought parts of the Scottish law more in line with the Defamation Act 2013. Northern Ireland did not adopt the Defamation Act 2013 and it largely operated under the Defamation Act (Northern Ireland) 1955 which was identical to the Defamation Act 1952. It had been argued that Northern Ireland offered less protection to freedom of expression. Relatively recently, the Defamation Act (Northern Ireland) 2022 was enacted and it brought parts of the law in line with the Defamation Act 2013, however, it did not adopt the serious harm test.
Lawdit Solicitors: Your Defamation Law Specialists
At Lawdit Solicitors, we specialize in defamation law. If you are facing a defamation claim, whether as a claimant or defendant, our expert team is ready to provide the guidance and representation you need.
