How can you identify a possible claim in Defamation?

Whether you are the one posting, or being posted about on Social Media, it is important to understand that Defamation is an umbrella term for a claim in libel or slander.

Defamation mainly concerns statements that are made that lower the estimation of the claimant in the minds of right-thinking members of society generally, and often involves individuals of a high-public profile, such as celebrities and political figures.

For someone to be sued for making a defamatory remark, 3 main elements must be sufficed: 

  1. Is the statement Defamatory?

A defamatory statement can take many different forms including words, images and text. For it to be defamatory, it must seriously affect the claimant’s reputation to the public, as reasonable readers, when viewed in its implied or natural and ordinary meaning. The public’s views of the claimant must be seriously harmed resulting from what the statement suggests.

2. Does it refer to the Claimant?

The statement must directly refer to the claimant, whether this be by their full name or an image of them. Where their name is stated, but more than one individual within the same industry with the same name exists, the court may refuse this element as insufficient, although, other precedents suggest that the Defendant can be liable for defamation even in instances where they did not intend to refer to the claimant in their statement, but is ultimately up to the court’s discretion.

3. Has it been published?

The statement has to have been published to a third-party for the claimant to be successful. While previous defamation claims have been published via a newspaper article, defamatory statements have, more recently, been published to social media sites, as the world becomes technologically advanced, including sites such as Facebook, Twitter, and Instagram. This emphasises the caution that individuals should take when posting about other people on such sites. 

Under section 4A of the Limitations Act 1980, Defamation claims have 1 year from the statement’s publication to bring forward legal action.

If you are being accused of having made a defamatory remark, it is essential to understand possible, applicable defences:

  • Privilege

This is where freedom of speech is more important than protecting an individual’s reputation, and is often applicable in cases involving statements made by political members in Parliament or published by either house. It can also be applied when a statement is made by an officer of state to another officer in the duration of their duty, as well as between spouses. It is most often used when statements are made during judicial proceedings by the judge, the jury, the lawyers, the witnesses, or by either party, to further protect their freedom of speech within litigation. The judge also has the ability during litigation, to prevent defamations until the jury reach a verdict, to prevent influencing them.

  • Innocent Dissemination

This is where the defendant has no knowledge that the statement was defamatory, and often appears in cases of mistaken identity.

  • Truth

This is present where the defendant is true that their statement is the truth. They are not required to prove that every word of the statement was truthful, only that it was substantially truthful.

  • Honest Opinion

The defendant must prove that their statement was made by their honest opinion, regardless of if their views were exaggerated or prejudiced, as long as they were honestly held. For this defence to be applicable, it must be an opinion that indicates a basis of an opinion, and it must have been reasonable to have that opinion.

  • Public Interest

If the defendant can prove that the statement concerned an important matter in the public interest, and that they reasonably believed that publishing the statement was in the public’s interest, then it may be applicable. This defence is most often used by media outlets in defamation claims

Please get in contact with the Lawdit team today if you have any questions regarding Defamation, or would like legal advice with a possible Defamation claim.

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