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Before embarking on a claim in libel or slander you must consider your prospects of success, especially as costs in defamation claims can quickly escalate. The following elements need to be considered:
Is it libel or slander?
Libel is a statement in permanent form which would traditionally be in writing often printed in the press. Slander is a statement in a transient form which is usually spoken. Although, technology, the internet, and social media has blurred the lines between slander and libel, the courts have generally accepted statements published on social media platforms as libel. The main distinction between a claim in slander is that subject to certain specified exemptions the claimant must prove special damage, which is a quantifiable loss as a foreseeable and direct result of the statement complained other. A claim in libel is actionable without proof of special damage.
Does the statement refer to you?
The claimant must be able to show that the statement complained of refers to them. This can be obvious when the claimant is named directly. However, sometimes statements may refer to a person by innuendo. When this is the case, the claimant will need to show that the likely reader or listening of the statement complained of would understand the innuendo as referring to the claimant. In cases where the likely reader or listening would need to know some other information to understand the innuendo, this may reduce the potential damages award as it will reduce the harm to the claimant, as the persons who understand the innuendo will be limited.
Has the statement been published to a third-party?
This element is usually quite straight forward. The statement complained of must be published to a third-party which can be obvious when, for example, thousands of copies of a newspaper have been distributed. In the case of the internet, it is deemed to be published when the third-party accesses the statement by clicking on the link or by downloading the article. On social media platforms reactions to the statement by way of likes and comments will clearly show that the statement has been published to a third-party.
Is the statement complained of defamatory?
There is no single definition of what is defamatory, however, the courts have established that a statement is defamatory when the ordinary reasonable person when reading or hearing the statement would; think less of the person referred to; think the person referred to lacks the ability to effectively carry out their work; shuns or avoids the person referred to; or treats the person referred to as a figure of fun or an object of ridicule. An often-favoured definition is that provided by Lord Atkin in the 1936 case of Sim v Stretch where it was said:
“Defamation is a publication of an untrue statement about a person that tends to lower his reputation in the opinion of right-thinking members of society generally”.
A statement may not be clearly defamatory. It may be defamatory by innuendo. That innuendo may limit any award for damages, if it is likely to reduce the persons who would understand the defamatory remark.
However, the Defamation Act 2013 established a serious harm test.
Has the statement complained of caused serious harm or is it likely to cause serious harm?
A statement is not deemed to be defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant. For a claimant that is a body that trades for profit, it is not serious harm unless it has caused or is likely to cause that body serious financial loss.
If you can establish that the statement complained of refers to you, has been published to a third party, is defamatory of you, meaning the statement has caused you or is likely to cause you serious harm, you may have a claim.
But there is more you must consider.
Is there a defence?
The defendant may have one of the following defences to the claim:
- Truth.
- Honest Opinion.
- Absolute Privilege.
- Qualified Privilege.
- Public Interest.
- Operators of Websites.
You should also be aware that defamation claims must be commenced within a one-year time limit from the date of publication. Additionally, the single publication rule means that if a person publishes multiple statements over a period of time, and all the publications are deemed to be substantially the same, the time limit will run from the date of the first publication, unless published in a materially different manner from the first publication.
Additionally, the internet, especially social media, allows people to publish statements anonymously or by using a pseudonym. If this is the case, you will have an additional hurdle in identifying the person in order to commence proceedings against them which will increase the costs.
If you have any questions regarding this article or a claim in defamation, please telephone our office on 02380 235979.
