Defamation: libel and slander

• Definitions of defamation
• Defences to defamation

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:

1. the words complained of are true in substance and in fact;
2. the statement is protected by absolute privilege (see below);
3. the statement is protected by qualified privilege (see below);
4. 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;
5. 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.
6. 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.

Footnotes

1. Sim v Stretch [1936] 2 All ER 1237, at 1240. Back to reference of footnote 1
2. Derbyshire County Council v Times Newspapers (1993) 1 All ER 1011 HL. Back to reference of footnote 2
3. Defamation Act 1996, s.1(1). Back to reference of footnote 3
4. 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. Back to reference of footnote 4
5. Defamation Act 1996, s. 3. Back to reference of footnote 5
6. Section 4(1) Defamation Act 2013. Back to reference of footnote 6
7. Defamation Act 1996, section 14. Back to reference of footnote 7
8. Defamation Act 1996, section 15 and Schedule 1. Back to reference of footnote 8