Defamation, Libel, Slander and Defences Lecture

Defamation is, in essence, the act of publishing an untrue statement which negatively affects someone’s reputation. Taken at face value this definition is obviously far reaching, covering acts as trivial as one classmate writing a joke on a scrap of paper and passing it to another. Luckily, both common and statute law has developed a framework to limit the extent of the tort of defamation. This has involved a significant balancing act - on the one hand, the law needs a way to deal with damaging false statements, else an individual with enough money or media control could shape public perception at will. On the other, freedom of expression stands as a key facet of liberal society. Indeed, if absolute truth were a legal requirement, art, comedy and criticism would disappear in the blink of an eye.

They key authority is the Defamation Act 2013, which helps straighten out the significant body of case law which has built up over the years. The overall aim of the act was to rebalance the law towards protecting freedom of speech; in other words it benefits defendants more than it does claimants. It should be noted that the Act doesn’t destroy the common law, which remains important for clarifying key principles and terms (although it does override any contradictory common law). The same general definition of defamation still applies, but its elements have been slightly recast by the Act. The four primary components of defamation are a defamatory statement (this has a particular definition), about the claimant, which is published, which has caused or is likely to cause serious harm to the claimant’s reputation. Before continuing onto the elements, it is worth noting the distinction between libel and slander.

Libel and Slander

Although ‘defamation’, ‘libel’ and ‘slander’ are often used in everyday parlance to mean the same thing, they have specific legal meanings. The foremost thing to note is that libel and slander are simply two different types of defamation; defamation is the overarching tort, libel and slander are just two different ways of committing that tort. The distinction between the two is slightly anachronistic, and most legal systems have done away with it (indeed, it was recommended by the 1975 Faulks committee that the same thing happen here, it didn’t). Nonetheless, it remains in place under the common law, and slightly different rules dictate when each is actionable. Since they are different brands of defamation, they both remain privy to the general principles governing the tort of defamation (in other words, read the below sections on libel and slander in conjunction with the section after).

Libel

Libel refers to permanent defamatory statements, so anything which is written (books, newspapers, letters), anything which is broadcast (television or radio as per s.1 of the Defamation Act 1952, cable television as per s.28 of the Cable and Broadcasting Act 1984), and even theatre productions (as per s.4(1) of the Theatres Act 1968.) The ‘permanence’ requirement doesn’t mean ‘forever’ (because on a long enough time line, nothing is), but rather communication which exists for longer than the time the original message is communicated. Thus, the courts have gone as far as suggesting that skywriting can constitute libel since the writing takes time to disperse, as in Gulf Oil (GB) Ltd v Page [1987] Ch 327, which concerned a plane towing a defamatory statement behind itself.

Words are not necessary, it merely must be a type of permanent communication. Thus in Monsoon v Tussauds Ltd [1934] 50 TLR 581 the defendant placed a waxwork of the claimant near its ‘Chamber of Horrors’ exhibit. He had been tried for murder, but not convicted. Since this was a permanent communication, this was held to be libel (described by the court as libel via innuendo).

It should be noted that libel is also a criminal offence, as well as a tort.

Slander

Slander is a defamatory statement which is non-permanent. In essence, it covers defamatory statements which aren’t included under libel. The key example is spoken word - an untrue statement whispered in the ear of the right person can be devastating to an individual, and so the law recognises this. Gestures can also constitute slander, since they are a form of non-permanent communication - thus, even those who communicate via sign language are covered by the law!

Because non-permanent statements have a lesser effect than permanent statements, a claimant must show that they have suffered a ‘special loss’, in effect a loss which can be estimated in monetary terms. The courts however have stretched this definition to include loss of a marriage prospect (in Speight v Gosnay [1891] 60 LJQB 231), and loss of consortium (effectively, losing the financial support of a family member, as in Lynch v Knight [1861] 9 HLC 777).

There are two exceptions to this rule. Firstly, if it is imputed that the claimant has committed a criminal offence punishable by imprisonment (in the first instance, as opposed to as a repeat offence), as per Gray v Jones [1939] 1 All ER 798. This is because statements of this nature can quite easily lead to exclusion from society and other negative effects.

Secondly, if the statements are calculated to disparage the claimant in his or her profession, business or office. Thus, in Foulger v Newcomb [1867] LR 2 Ex. 327 the claimant was a gamekeeper tasked with preserving foxes. A slanderous statement was made that he was poisoning them instead. This was actionable, since it the statement was directed against his ability to practice his profession. It should be noted that the statement must be based on the claimant’s calling, rather than merely being an unrelated statement which nevertheless might affect others’ perception of the claimant’s ability to undertake that calling. Thus, in Jones v Jones [1916] 2 AC 481, the statement was that a schoolmaster had committed adultery on school premises. This was not actionable - the statement wasn’t closely related enough to the claimant’s profession. In contrast there is the case of Thompson v Bridges [1925] 273 SW 529, in which a schoolmaster was slanderously accused of sleeping with a student. This was calculated to disparage the claimant in his profession, and so was actionable without special harm. Much like slanderous statements regarding criminal acts, such statements are actionable per se because they can effectively destroy an individual’s ability to pursue their chosen profession.

It used to be the case that imputing that a girl or woman was unchaste or adulterous via slander was actionable per se. This was repealed by s.14(1) of the Defamation Act 2013 (presumably because this exception relied on anachronistic views of women’s societal ‘worth’). It also used to be the case the imputing that someone had a contagious or infectious disease was an exception - this was repealed by s.14(2) of the 2013 Act. Special damage is now required in both of these situations.

Slander is not a criminal offence.

Since slander usually requires special damage and libel does not, it will usually be preferable for a claimant to argue that libellous defamation has occurred, if possible.

Elements of Defamation

The Statement Must be Defamatory

The definition of a defamatory statement is found in the common law. Since the communication of concepts and sentiments is an inherently inexact phenomenon, so too, is the definition of a defamatory statement.

Whilst the edges of what constitutes a defamatory statement are a little fuzzy, the general concept can be found through reference to a number of cases. The first instance of note is the definition advanced in Parmiter v Coupland.

This definition can be added to that employed in Sim v Stretch

This provides a rough basis for a defamatory statement as something which negatively affects a claimant’s reputation, which might affect perception of that person’s ability to do their job, which might cause an individual to be considered a person of poor standing (someone you’d rather not have around), and/or someone who is not be taken seriously or deserving of respect. None of these criteria are a right that any individual has - rather, if someone has built themselves a truthful reputation as a decent, competent person (for example, by not stealing and by doing their job well and giving to charity) they have a right to not have that reputation destroyed by falsehoods (that they are a thief, an incompetent, or that they are greedy). Thus, just as an individual has a right to not have their wages stolen, someone who earns themselves a good reputation has a right to not have that reputation stolen or tarnished.

Most notably, reputation is not an inherent characteristic, but is a matter of perception - a man stranded solo on a desert island has no reputation at all. Thus the defamatory nature of a statement is not based on the reaction of the claimant to that statement, but rather the reaction of others to that statement. This means a statement cannot be defamatory if communicated only to the subject of that statement (if you’re told you’re a thief by another, you know that’s not true, and so your perception cannot possibly be changed).

There is no need for a claimant to show that the statement made had a particular effect on certain persons, or the public in general (else they’d have to run absurd surveys and polls for the sake of evidence), instead they must simply argue that the defamatory statement would have had the abovementioned negative effect on the claimant’s reputation in the mind of an ordinary, reasonable recipient. This principle is essentially included in s.1(1) of the 2013 Act, which dictates the need to show either serious harm, or likely serious harm to reputation. As a general rule, statements which are clearly a matter of raised passions or vitriol will not be regarded as defamation, since the ordinary person will usually be held to know the difference between a statement made out of anger and one made calmly (and that the former type of statement shouldn’t be given much weight). This can be seen in Penfold v Westcote [1806] 2 B & P (NR) 335. The defendant yelled at the claimant “…come out, you blackguard rascal, scoundrel, Penfold, you are a thief!” This was not held to be slanderous (see the section above on imputing criminal status), because anyone who heard the accusation would realise that it was in the heat of passion. However, it is doubtful that such a defence could be applied in the case of written or recorded statements (since the defendant invariably has a chance to not distribute their statement, and it’s very difficult for a reader to infer that such statements are made merely out of momentary passion.) In short: context and content are crucial to a statement being of a defamatory nature.

With the general definition above in place, the nature of a defamatory can be best understood through its application, as in Byrne v Deane.

The scope of defamation can be seen in a wide range of scenarios. Thus in Berkoff v Birchill [1996] 4 All ER 1008, a journalist described the claimant, an actor, as “hideously ugly”. Whilst such a statement would not ordinarily be defamatory (beauty is, after all, in the eye of the beholder), it was in this case, since the claimant made his living as an actor and thus the statement was held to single him out as an object of ridicule.

In Donovan v The Face [1992] (Unreported) the claimant, Jason Donovan, was outed as gay by the defendant. Donovan sued for defamation, not on the basis that the accusation itself was defamatory, but on the basis that it carried the implication that he was intentionally deceiving the public (and thus, was both a liar and a hypocrite).

The context principle can be seen in Cassidy v Daily Mirror Newspapers Ltd [1929] 2 KB 331. The defendant published a photo of a couple, claiming that it was of the claimant’s husband and his supposed fiancée - this information came from the claimant’s husband himself. The caption was actually false - the claimant was married (although she did live apart from her husband). Since this implied that the claimant wasn’t married, the photo had the effect of implying that the claimant was in fact her husband’s mistress, not his wife. In a modern context, the claimant would have had a harder time arguing such an implication was injurious to her reputation. Such a case also demonstrates that it is not just the bare statement which is relevant, but any reasonably drawn implication. This also demonstrates the fact that the definition of defamation is based on the mind of the perceiver, rather than the publisher. In this case, the defendant didn’t know that they were publishing a falsehood, and the effect this would have on the claimant. Nonetheless, the newspaper was held responsible for the content it published.

Defamation need not be particularly insidious. Thus in Tolley v Fry & Sons Ltd [1931] AC 333, the claimant, a well-known amateur golfer, was depicted in a caricature (without his permission) with a bar of the defendant’s chocolate in his back pocket. The implication was that the golfer had endorsed the brand (else why depict him?), and that therefore the golfer had pursued paid advertising opportunities contrary to his amateur status. As well as the effect on his reputation, this might have resulted in him being barred from several golf clubs. This claim was successful.

The Statement Must be About the Claimant

It must be established that the defamatory statement is about the claimant. This will usually be simple, if the claimant is named or identified. Sometimes, the exact subject of a statement will be unclear. Nevertheless, if the claimant can be identified from the information included in the statement, then this criterion will be satisfied, as in Morgan v Odhams Press.

If a statement is made about an individual which is true, but through coincidence also applies to another individual (who can be identified, as per Morgan v Odham Press) for whom it is untrue, then a claim will still exist. This is illustrated by Newstead v London Express Newspaper Ltd [1940] 1 KB 377. The defendant newspaper reported that a man named Harold Newstead, living in Camberwell, aged 30, was convicted of bigamy. There were two men with these characteristics living in Camberwell, and whilst the statement was true of one of them, the innocent Harold Newstead sued in defamation. Despite the truthful nature and intent of the reporting, this was still defamation - a reasonable person would still think the statement referred to the claimant.

There is a limit to this principle, because there comes a point at which a statement does not refer to identifiable individuals, but to a class of persons. This can be seen in Knuppfer v London Express Newspapers [1944] AC 116. The defendant newspaper put out an article on Russian political group, Mlado Russ (or ‘Young Russia’), stating that they were fascists working to advance the aims of Adolf Hitler. Although the group had thousands of members in Russia, it had only 24 members in its British branch. The claimant, one of these members, brought a case against the defendant asserting that this was defamatory to him as the leader of the branch, and thus the most prominent member. The claim however, failed - there was nothing in the article personally identifying the claimant (and indeed, no particular reference was made to its British operations).

There thus exists a vague point at which a reference to a class becomes a reference to identifiable individuals. This can be seen in Le Fanu v Malcolmson [1848] 1 HLC 637. An article was published referring to the “owners of some of the Irish factories” as implementing cruel employment policies. Due to the characteristics listed of the factories, it was possible to identify the claimants at the subject of the article, and thus a claim for defamation succeeded. Chief Justice Lord Campbell noted (at 668) that where a class is described in a way which clearly refers to an individual or individuals, then that will be sufficiently precise for a defamation claim: “whether a man is called by one name […] or whether he is described by a pretended description of a class to which he is known to belong, if those who look on know who is aimed at the very same injury is inflicted…”.

The Statement Must Be Published

As noted above, defamation is about communication of a statement. This is referred to as publication, although this term has a specific legal meaning. The definition can be found in Pullman v W. Hill & Co Ltd.

If it is reasonably foreseeable that a third party will read or receive a defamatory statement which is sent directly to the claimant, then that will constitute publication, as in Theaker v Richardson [1962] 1 WLR 151. The defendant sent a letter to the claimant, making a number of insulting accusations. The claimant’s husband opened and read the letter, thinking it was an election address (a political leaflet). This was held to be publication, since the claimant was able to show that the defendant anticipated that someone else might read the letter. In contrast, in Huth v Huth [1915] 3 KB 32 a nosy butler opened his master’s mail and read the defamatory statement. This was not defamation, since this was unforeseeable; indeed, the butler was acting in breach of his duties. The fact that there are plenty of situations in which others open and read mail on behalf of others (secretaries, mailroom clerks) makes this a common means of publication - and thus a prudent defendant will send any defamatory remarks straight to the claimant, and mark them as private (or similar.)

The Statement Must Cause Serious Harm

This criterion is a new development, brought into force by s.1 of the 2013 Act. Although the case law on this point is sparse, there exists one noted case, in the form of Cooke v MGN Ltd [2014] EWHC 2831. The defendant newspaper published an article in which it was asserted that she owned a number of properties rented to people on housing benefit, and that they were kept in a state of disrepair (roughly, an accusation that the claimant was profiting from others’ poverty). The claimant could not demonstrate that this had caused serious harm (or was likely to do so), and thus the claim failed.

Defences

Truth

As per s.2(1) of the 2013 Act, if a statement is true, then this will form a complete defence. It should be noted that the burden of proof for showing that a statement is true rests with the defendant. The defendant does not have to show that every single characteristic of the statement made is true, merely that it is substantially true. This can be seen Alexander v North Eastern Railway Co [1865] 6 B & S 340. The defendant put up ‘name and shame’ posters up at a number of its stations, stating that the claimant had been charged with travelling without a ticket, and ordered to pay a fine or serve 3 weeks prison time. In fact, the sentence of prison time was only 2 weeks long. The claimant argued this made the offence look worse than it was. The defendants successfully argued that the substance of the statement was true, and the claim failed.

Privilege

Individuals in certain roles are protected from defamation claims. This takes two forms; the first being absolute privilege. This is enjoyed by Parliamentarians (as per the Bill of Rights 1668) and members of the judiciary (as per s.14 of the Defamation Act 1996).

The second is qualified privilege, as per s.15 of the 1996 Act, and covers situations in which an individual is obliged morally or statutorily to communicate information. The typical situation regards employment references; since the referee is generally obliged as a matter of good business practice to provide a reference. The law recognises that it would be unjust to punish someone for doing something they are obligated to, and thus whilst an inaccurate reference can be damaging, it will not give rise to a defamation claim. The exception is if a reference is made maliciously (as per Spring v Guardian Assurance plc [1994] UKHL 7).

Public Interest

As per s.4 of the 2013 Act, if a statement is made on a matter of public interest, and the defendant reasonably believes that publishing the statement is in the public interest. Although there is little guidance on what exactly constitutes public interest since 2013, Reynolds v Times Newspapers Ltd [2001] 2 AC 127 provides a list of the factors which indicate whether a statement is made in the public interest or not. The defendant newspaper published (ultimately false) allegations that the claimant, a recently resigned Irish Prime Minister, had misled the Irish Parliament. The courts found themselves having to balance the need to prevent defamation and the need to retain the ability of the media to report allegations freely. Lord Nicholls provided a list of factors indicating when the courts were likely to permit the defence to be advanced:

• Seriousness - serious allegations are more damaging, so a serious false allegation is harder to justify on the grounds of public interest.
• Subject matter - certain topics are more likely to be found to be in the public interest, so reports on parliamentary impropriety is in the public interest, but reports on a newspaper editor’s hairdresser’s sexual activity is not.
• Source - well-sourced information is more likely to be protected. If a statement comes from someone who obviously has an interest in spreading lies, or is paid for the story, then it is less likely to be in the public interest to publish it.
• Verification - verified information is more likely to be protected than unverified information.
• Status - Information which has already been subject to another investigation is more likely true, and so more likely to be protected.
• Urgency - there are situations in which it is in the public interest to publish quickly, and so the courts will take a kinder view there is no time to verify it.
• Comment from the claimant - sometimes it will be reasonable to except a publisher to approach the subject of a statement for comment or rebuttal.
• Balance - statements which attempt to convey the claimant’s side of the story will be looked on more favourably.
• Tone - there will be situations in which a publisher has a choice between reporting allegations as allegations, or as solid fact. Statements which err on the side of caution will be looked on more favourably.
• Circumstances - in effect, any other external factors, such as timing: statements timed to do damage will be looked on less favourably.

In essence, the courts are seeking to make a distinction between diligent, proper journalism published in good faith, and disingenuous editors attempting to use the public interest defence to protect poor quality, salacious reporting.

Honest Opinion (Or ‘Fair Comment’)

As per s.3 of the 2013 Act, honest opinion will not be considered defamation. The key to advancing this defence is that the statement must be presented as opinion, rather than fact, and that the statements made are ones which are actually matters of opinion, rather than fact. So a statement from an author that ‘2’ is the best number is an opinion, and a matter of opinion. In contrast, a statement that ‘2+2=5’ might be an author’s opinion, but the answer to ‘2+2’ is not a matter of opinion, but fact. Thus this defence would not apply.

The opinion must also be one which the court regards as one which a reasonable person might form based on the facts available to them - so conjecture which ignores obvious evidence to the contrary will not be protected by this defence.

Reportage

As per s.7 of the 2013 Act, there are a variety of situations in which simply reporting what another has said will be protected from defamation claims. This is based on the distinction between republishing a statement, and merely reporting that a statement has been made. Thus a newspaper which reports that a public figure has made a statement that government is staffed with lizard people will not be regarded as making that statement itself, even though it has technically given that opinion prominence.

Website Operators

As per s.5 of the 2013 Act, the law has developed a particular way to deal with the operation of websites, aimed at taking account of the fact that unlike conventional media, there is often an important distinction to be made between the content published by a website operator and the content published by its users. Since it would be overly onerous (and often undesirable) to expect website operators to operate as moderators of every statement which is made on them, a website owner can defend itself from defamation claim by simply pointing out that the statement was not one they made, but instead it was one made by a user. Thus if a defamatory statement is made on Facebook, then Facebook’s owners won’t be held responsible for it, as long as they can show that it was made by a user.

A claimant can defeat this defence if they show that it was impossible for them to identify the original author of the statement. Thus if a website operator provides users with absolute anonymity, then it will be held responsible for the content posted there. A claimant can also defeat this defence by showing that they asked the website operator to remove the defamatory statement, but that they failed to do so.

Further Notes

The Dead Can’t Be Defamed (or Defame)

Although the tort is one of injuring reputation, this only applies to the reputations of the living. Thus, the dead cannot be defamed, and nor can they be a defendant in a defamation case.

Trial by Jury (with Permission)

There exists the ability for a defamation claim to be heard by a jury. This used to be a right, but s.11 of the 2013 Act has removed it, allowing a trial by jury if ordered by a court. The willingness of the courts to do this is doubtful, considering the added cost, time, and unreliability this would add to any given case.

Limitation Period

The limitation period for claims for defamation is unusually short, lasting only a year in time from when the statement occurred as per s.4A of the Limitation Act 1980. If a statement is made and then repeated (in a form which is substantially the same), then this time limit starts upon the first instance of publication, as per s.8 of the 2013 Act. So if a statement is published online on one website in January and then again on another website (by the same author) in June, the one year only runs from January. This does not apply to publication in a materially different form - so if a statement is published online in January, and then in a newspaper in June, then a claim for the newspaper publication can be made in the year running on from June.

Company Reputation

Unless the harm is of a serious financial nature, organisations which trade for profit cannot bring a claim for defamation, as per s.1(2) of the 2013 Act.

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