Civil Litigation

The Law of Defamation Explained

Defamation may occur when a person makes a statement that damages your reputation.  The 1936 case of Sim v Stretch provided the common law test which is 'would the words tend to lower the plaintiff [claimant] in the estimation of right thinking members of society generally?'  Lord Atkin said: “A defamatory statement is one which injures the reputation of another by exposing him to hatred, contempt, or ridicule, or which tends to lower him in the esteem of right-thinking members of society.”

Under the Defamation Act 2013 “a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.”

In the case of a corporate body, for ‘serious harm’ to be established under the Act, the claimant must have suffered serious financial loss.

How is defamation established?

To establish defamation, the following factors must be present:

  • a defamatory statement was made
  • the statement had a negative impact, ie 'lowered the claimant in the estimation of right thinking members of society'
  • the statement refers to an identifiable legal person
  • the statement was published
  • there is no lawful justification or other statutory defence

What are the defences available for defamation?

The principal defences that can be raised in a defamation claim are:

  • truth—the defendant can prove the words are true
  • qualified privilege—a partial defence where the defendant can prove that the publication was in the public interest. There are two forms of qualified privilege; statutory and common law
  • public interest defence—a defendant can avoid liability if the truth of a statement cannot be proved but if it can be established that publication was responsible and in the public interest. This statutory defence replaces the common law defence known as Reynolds privilege
  • a statutory defence for operators of websites where complaints about defamatory statements are processed in compliance with Defamation (Operators of Websites) Regulations 2013
  • absolute privilege—a complete defence applying to statements made in certain situations, eg in Parliament, between solicitor and client, statements to the police in a criminal investigation
  • honest opinion

Is there a time limit to bring a defamation claim?

You must bring a claim for defamation within one year of the act occurring, unless the Court rules it inequitable not to extent the time limit.

What damages can I expect if I am successful in a claim for defamation?

The Court has a wide range of options available when awarding damages in a defamation claim including:

  • general damages to compensate the claimant for distress, hurt feelings and damage to reputation
  • aggravated damages where the defendant's actions have increased the claimant's distress
  • exemplary damages where the defendant obtained (or aimed to obtain) some financial advantage as a result of the defamation
  • special damages where the claimant has suffered a quantifiable financial loss as a result of the defamation

The law of defamation is complex.  If you believe you have a valid claim, then it is best to seek advice from an experienced civil litigation solicitor.

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