Defamation FAQ

Defamation – libel and slander: frequently asked questions

The law of defamation, libel and slander can be complex and is invariably highly fact-specific. This Q&A is designed to provide guidance only. If you believe you or your business have been the victim of a libel or slander, or where you are aware that an attack on your reputation is imminent (most obviously in the media), you should seek immediate advice from specialist media lawyers. A list of our lawyers is here.

What is defamation?

Defamation is the publication to a third party of a statement about you which has caused or is likely to cause serious harm to your reputation. The defamatory publication will either be a libel or a slander (see below).

What is libel?

Libel relates to a defamatory publication which is permanent. Most obviously this includes written material (books, newspaper and magazine articles or material published online), as well as allegations appearing on TV or radio.

What is slander?

Slander relates to more transient publications, principally spoken words or even physical gestures.

What if I am not named?

You may still be able to bring a claim for libel or slander as long as you are identifiable.

Can companies sue in defamation (libel and slander)?

Yes, if the statement has caused or is likely to cause serious harm in the form of serious financial loss.

Can I sue for libel in England and Wales if I am based outside the jurisdiction?

You may still have a claim for defamation if there is publication here and there is serious harm to your reputation here. If you are domiciled outside the EU or a contracting state to the Lugano Convention the court will consider if England and Wales is clearly the most appropriate place in which to bring your claim.

The statements have been published online - can I still sue?

Yes. Libel covers all written words, wherever they are published, although the operators of websites are given certain protections if they were not responsible for publishing what has been posted on their website.

Can I bring a libel complaint over defamatory publications on social media such as Twitter or Facebook?

Yes. Even relatively transient publications such as Tweets can constitute libel provided they have caused or are likely to cause serious harm to reputation.

Who do I sue for libel or slander?

Any person, company or other legal body involved in publishing the defamatory material can be sued in libel or slander. This includes the author, any editor or any publishing company. Sometimes distributors of defamatory material can also be sued, including website owners and ISPs.

Is there a time limit for bringing proceedings for defamation (libel or slander)?

Yes. You usually must start a claim for libel or slander within one year of the date of publication. In the case of material which continues to be published online, the time will start to run from the date the material was first published.

What defences are available in defamation claims?

There are four main defences available to a defendant in a libel or slander action: Truth, Honest Opinion, Publication on a matter of Public Interest and Privilege (Qualified or Absolute).

  1. Truth: it is a complete defence to a claim in libel or slander if the defendant can show that the allegations they have published are substantially true. However, the burden rests on the publisher to prove that they were true, rather than for the claimant to show that they were false.
  2. Honest Opinion: it is a defence to a defamation claim if the publisher can show that what they published was a statement of opinion; that the statement complained of indicated the basis of that opinion; and that an honest person could have held the opinion based on any fact which existed at the time the statement was made. The defence is defeated if the claimant can show that the defendant did not hold the opinion.
  3. Publication on a matter of public interest: the defendant must show the statement complained of was, or formed part of, a statement on a matter of public interest and that the defendant reasonably believed that publishing the statement complained of was in the public interest, having regard to all the circumstances of the case.
  4. Privilege: this protects statements made on occasions where public policy requires people to able to speak freely. Privilege can be “absolute” (for examples statements made in Parliament, where the law in effect give immunity from suit in libel or slander) or “qualified” (such as job references). Where the privilege is only “qualified”, the defence will be defeated if the claimant can show that the statement was published maliciously.

Can I get compensation/damages for defamation?

Usually if your defamation claim in libel or slander is successful either at court or in a settlement you will get compensation. How much you get depends on how serious the allegation is, and what harm has been caused. Where the case is decided in your favour by the court it may also be possible at that stage to get an order (called an injunction) preventing further publication. If the case is settled out of court or by agreement you can seek undertakings from the publisher not to repeat the allegations. If successful, it is also usual for the court to order your unsuccessful opponent to pay a large proportion of your legal costs.

Can I get an apology for a libel or slander?

It is usual to ask for an apology in your initial letter of complaint and common for the defendant to agree to publish an apology as part of a settlement. A court cannot usually force a defendant to apologise, however, so where a case goes to trial vindication is achieved through a public judgment in your favour and the award of damages.

Do I have to go to court to obtain redress for libel or slander?

Not necessarily. You first need to write a letter of complaint (or ideally instruct media lawyers specialising in defamation) under what is called the Defamation Pre-Action Protocol. The courts are keen for parties to try to resolve things without going to court, as this will save costs and time. Many disputes are solved without the need for court proceedings.

Something defamatory is about to be published - can I stop it?

It is very rare to get a court order (called an injunction) preventing publication on the basis of potential libel. However, it can be possible to dissuade the publisher from going ahead with publication if you are able to demonstrate that the allegations are false and that they are taking a significant legal and financial risk in going ahead. Ideally you should use specialist media solicitors who are well-versed in the strategic and legal considerations and will also be familiar with the in-house lawyers at the relevant media organisations.
Even if you cannot stop publication completely, you may be able to change what is published about you by getting in touch with the publisher before publication and telling them what the true facts are, or by answering questions.

Are there any alternatives to defamation proceedings?

Yes. You can consider for example a claim for malicious falsehood or negligent misstatement.

© 2020 Carter-Ruck, The Bureau, 90 Fetter Lane, London EC4A 1EN | lawyers@carter-ruck.com

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