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The basics of the law relating to defamation

by Redmans Solicitors on September 14, 2012

With the Leveson Inquiry having concluded its public hearings (and Lord Leveson to file his final report and recommendations in November) the subject of defamation has been an extremely topical one this year. Libel actions against newspapers (such as Steve Coogan’s, for example) can be extremely high-profile and have gained much publicity in the wake of the Inquiry. This post will take a look at the law relating to defamation in the UK, examining in particular:

  1. What types of defamation are there?
  2. What must a Claimant show in order to prove defamation?
  3. Are there any defences available to a claim for defamation

What types of defamation are there?

There are two “sub-types of defamation:

  1. Slander
  2. Libel

Slander

Slander is an inpermanent form of libel. It normally occurs when a defamatory statement is made verbally instead of recorded in some form. In order to succeed in a claim of slander the Claimant normally needs to prove that some harm has been done by the defamatory statement (for example, a slanderous verbal employment reference has prevented you from getting a job). In practice slander is quite difficult to prove as there is by definition no recording of the defamatory statement.

Libel

Libel is the permanent publication of a defamatory statement. It occurs when a defamatory statement is recorded in some form – for example in writing, on film or in a broadcast of some sort. In order to succeed in a claim for libel the Claimant doesn’t necessarily have to prove that they have been harmed in some way – they just need to show that the publication was defamatory and referred to them.

What must a Claimant show in order to prove defamation?

A Claimant must show the following in order to succeed in a claim for defamation:

  1. Defamation – that a defamatory statement has been made
  2. Referral – that this defamatory statement refers to the Claimant
  3. Publication – that this defamatory statement has been published

Defamation

In order for a statement to be defamatory it must lower the Claimant in the eyes of right-thinking people. This is an objective test and is essentially “would the statement lower the Claimant in the eyes of the reasonable person?”.

Referral

The statement must also refer to the Claimant. It must therefore identify the Claimant in some form – an obvious example would be the inclusion of the Claimant’s name in a newspaper article. However, a statement can refer to a person even if the Defendant didn’t intend for that statement to refer in fact to the Claimant. If, for example, a fictitious character bears a strong (and defamatory) resemblance to the Claimant then it may be deemed to be referring to the Claimant, even if this is unintentional.

Publication

In order for a statement to have been published it must have been communicated to at least one other person than the Claimant themselves.

Are there any defences available to a claim for defamation?

The following are potential defences to a claim for defamation:

  1. Consent – That the Claimant consented to the publication of the statement
  2. Truth – that the statement referring to the Claimant is true
  3. Fair comment – that the statement is in the public interest and objectively fair
  4. Privilege – either absolute or qualified privilege

Redmans Solicitors are lawyers in Richmond. They are defamation solicitors but are also London employment lawyers

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