Defamation: libel and slander
Definitions of defamation
1. You should be on guard against making statements which could be defamatory. A defamatory statement is one which injures the reputation of another person: it "tends to lower him in the estimation of right-thinking members of society generally1".
2. Such a statement constitutes a "libel" if it is:
- published (publication, for these purposes, is simply the communication of the defamatory matter to a third person)2; and
- in writing, print or some other permanent form.
3. A statement will amount to a "slander" if it is
- published; and
- made orally or in some other transient form.
4. An action for defamation can be brought by:
- an individual;
- a company, in respect of statements that damage its business reputation.
5. An action for defamation cannot be brought by a Local Authority2 nor by any other public authority.
6. Section 1(1) of the 2013 Defamation Act introduced a new test which provides that a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant. This is qualified by s 1(2) in that for the purposes of the section, harm to the reputation of a body that trades for profit is not "serious harm" unless it has caused or is likely to cause the body serious financial loss.
Defences to defamation
7. There are a number of defences to an action for defamation, including:
- the words complained of are true in substance and in fact;
- the statement is protected by absolute privilege (see below);
- the statement is protected by qualified privilege (see below);
- the statement constituted fair comment on a matter of public interest: that is, opinion which any person could honestly hold, based on facts known at the time;
- the words were published innocently by a person who was not the author, editor or publisher of the statement, who took reasonable care in relation to its publication, and s/he did not know, and had no reason to believe, that what s/he did caused or contributed to the publication of a defamatory statement3 and an "offer of amends" has been made4. Proceedings cannot be taken if the offer of amends is accepted5. It will constitute a defence if the offer was made as soon as practicable after the publisher received notice that the words might be defamatory.
- Publication on a matter of public interest provides for the defence to be available in circumstances where it can be shown that the statement complained of was, or formed part of, a statement on a matter of public interest and that it was reasonably believed that publishing the statement complained of was in the public interest6
8. Absolute privilege attaches to:
- words spoken in the ordinary course of legal proceedings;
- a fair and accurate report of public legal proceedings published contemporaneously with such proceedings7. Fairness requires that reports should be impartial and should convey the substance of what has taken place in court.
9. Qualified privilege attaches:
- where the person who makes the communication has a duty to its recipients and they have an interest in receiving it (eg. where you have sought to publicise a letter containing implications for public safety);
- where it fairly and accurately reports public legal proceedings (they do not have to be published in a newspaper or be contemporaneous).
10. Statements must not be published `maliciously'. Reports are published with `malice' if the publisher knew the report was untrue, or was reckless as to its truth, or intended to injure the complainant8.
11. Where there are good reasons for HSE to issue a press release after a particular case has been heard, Press Office should be contacted immediately. Any comment should be published as soon as possible.
- Sim v Stretch  2 All ER 1237, at 1240.
- Derbyshire County Council v Times Newspapers (1993) 1 All ER 1011 HL
- Defamation Act 1996, s.1(1)
- Defamation Act 1996, s.2. An `offer of amends' entails offering to publish a suitable correction, together with an apology, and to pay any legal costs incurred by the complainant.
- Defamation Act 1996, s. 3
- Section 4(1) Defamation Act 2013.
- Defamation Act 1996, section 14.
- Defamation Act 1996, section 15 and Schedule 1.