Common questions answered

Can I sue for defamation? Is defamation of character punishable by law?

Yes -generally an action for defamation can be brought in the civil courts in England & Wales by the person who believes that they have been defamed, subject to certain pre-requirements such as being able to show serious harm has or is likely to be caused to you by the allegation.

Individuals may sue as well as companies and limited liability partnerships. However, the rules for incorporated entities are stricter as they must be able to show that their serious harm suffered amounts to “serious financial loss”.

In addition, a partnership or an unincorporated association (such as a charitable trust) may sue in the name of the partners or trustees individually if they are identified as such or they can bring an action collectively.

No defamation (whether slander or libel) is a criminal offence in the UK as defamation only. However, depending on the content and circumstances of a statement by one person to others it may be a criminal offence under other legislation for example if it is deemed to be threatening or if it has been repeatedly made and causes the targeted person to feel subject to harassment -alarmed and distress. Always seek advice if you have any concerns.

What constitutes defamation? What is defamatory language? What is the legal definition of defamation -slander -libel?

A defamatory statement in England & Wales is a statement which tends to lower someone in the eyes of the right-thinking members of society generally or is likely to affect a person adversely in the estimation of reasonable people generally. It doesn’t matter if the person making the statement intended it to be defamatory or not. Usually it will be for the judge to decide whether a statement, and/or the meaning understood from the words said or printed or even gestures made, is/are defamatory or not.

A person must show that the statement complained of referred to them (named or clearly identifiable or referenced) and the statement was also made to a 3rd party. You can’t be defamed to yourself for example in a two-party telephone call (a conference call will be different). Or in a private letter between two parties unless the letter is shown to others by the author or it is reasonably foreseeable that the contents will be seen by others at the recipient. Each case will have its own circumstances to which the law and experience are to be applied, so we would always recommend to seek legal advice.

What are the different types of defamation? Is slander and defamation the same? What is the difference if any?

Defamation is the “umbrella” term which refers to both libel and slander. Both libel and slander are legal wrongs -known as torts- which mean that the ordinary person can bring a claim in court of the damage resulting from the wrong.

Libel concerns more permanent or lasting types of publication such as print, online or broadcasting.

Slander is the term for more transient publications such as spoken words.

A further difference is that a person claiming for a slander must show that it caused them tangible damage. However tangible damage is assumed in libel.

The other difference is that proving publication happened is going to be much easier if you have a copy of a written defamation rather than having to prove that exact words were spoken about you.

What is Slander? What are some examples of or could be considered as slander? What is it to slander someone?

Slander is just a defamatory statement which is usually spoken by one person to another or broadcast. For example, saying in public to others that the local butcher sells “bad” meat, or that a person is dishonest or has been convicted of a crime.

An example from our past cases; a client brought a slander claim arising from an allegation made at a parish meeting that the client had harassed the parish clerk for three years. That matter was settled with a statement in open court confirming the allegation was untrue, and payment of costs and damages.

Is libel more serious than slander?

No. While the requirements for proving the claim are slightly more for slander due to the les permanent form of the allegation, both libel and slander are both treated very seriously by the courts.

Can I sue if something is published on social media?

Anything published on social media with is defamatory and has caused, or likely to cause serious harm, can constitute a libel even if it is only there for a short time.

When can you sue for defamation – slander or libel?

The law requires that legal proceedings if any must normally be issued at Court within 12 months of first publication of the defamatory allegations. If something is online, then it will be when the story or article was first published.

What is the meaning of a defamation case?

This simply means a dispute concerning defamation by one person against another. In the Courts the word claim is used to describe the dispute instead of case or lawsuit or legal proceedings which are used commonly, but in plain English they mean the same thing.

Can you sue for emotional distress?

Yes, if you are making a claim as an individual.

The main remedy that the Court can provide in a defamation claim is damages. The court will consider three elements when assessing any compensatory damages for a claimant in a claim: an amount to address the damage/loss coming from the defamation, an amount to vindicate you (show to the world that what was said by the defendant was wrong) in the eyes of others who may have heard the original allegation, and an amount for your distress (injury to feelings).  

A corporate body (limited company or Limited Liability Partnership (LLP) or incorporated charity etc.) won’t be able to show emotional distress because it is not an individual hence why it must show serious financial loss to make any claim.

Can you defame someone by telling the truth? Is it slander or libel if it is true?

Yes- However if you can prove that it is true then you will have a defence to any claim for defamation. But be aware that the defendant must be the one to prove the truth of anything being alleged to be able to succeed with the defence of truth.

Are defamation cases hard to win?

Like most court proceedings defamation claims are adversarial. Both sides are in a battle to win. The costs and time required to do so can be very high, particularly as the result being that the loser will likely have to pay the other side’s legal costs as well as their own.

However, many potential defamation claims are settled with correspondence before any claim is issued in court. The court has set out a dedicated procedure (Defamation Pre-Action Protocol) for potential claimants to try and sort out by a formal letter any defamation claim dispute before any claim is issued in court. On a practical side it is a very useful way to try and sort matters out without the costs of formal proceedings in court. On the legal side there can be costs penalties imposed by the court if a claim issued without using the protocol or trying to settle it beforehand. 

Further, even when claims have been issued the majority will be settled through negotiation or mediation before they get to trial. We have a lot of experience in this area.

We have helped many clients to pursue their claim through the legal process including all the way to trial (including ambulance drivers, parents, taxi drivers, local councillors, charity workers, nurses, doctors and dentists, on a conditional fee (CFA or “no win no fee”) basis where certain pre-conditions have been met. We can offer a range of funding options for clients and we can discuss the insurance options available to cover clients in case they lose their claim.

What is a defence to defamation? What is the best defence in a libel case? What is absolute privilege?

There are four main defences to a claim for defamation. These are Truth, Honest Opinion, Publication on a Matter of Public Interest, and Privilege (Qualified or Absolute).

  1. Truth: It is an absolute defence to any defamation claim to show that a defamatory statement is true. There is a presumption that a defamatory statement is false, so the burden of proof is on the defendant. The intention of the defendant is irrelevant.

The more serious an allegation the harder it will be to prove justify it. However, there is no need to prove that every word is true, just the essential substance (the defamatory “sting” or meaning). There is often much dispute about the sting or meaning of the allegations and as the parties usually have differing views it will usually fall to be decided by the Court.

  • Honest Opinion: Previously known as fair comment ALL of the following three conditions must be met for this defence to succeed:
    • The statement complained of was a statement of opinion.
    • The statement indicated, whether generally or specifically, the basis of the opinion.
    • An honest person could have held the opinion on the basis of:
      • Any fact that existed at the time the statement was published; or
      • Anything asserted to be a fact in a privileged statement published before the statement complained of.

Where this defence is raised by a defendant each of the conditions will be contentious. However, even if all the conditions are successfully met the defence will fail if the defendant didn’t actually hold the opinion. The court will not allow your opinion to be protected if you didn’t truly hold it, for example if it is not based on true or privileged facts. It will be a for a judge to decide whether words are opinion or facts.

  • Publication on a Matter of Public Interest: The defendant must satisfy the following two stage test that:
    • the statement complained of was, or formed part of, a statement on a matter of public interest. AND
    • the defendant reasonably believed that publishing the statement complained of was in the public interest.

The Court will look at all the circumstances of the case when considering the defence.

  • Privilege: There are certain occasions where public policy allows that people should be able to speak or publish freely without the risk of a defamation claim. These are privileged occasions and there are two types:
  1. Absolute Privilege (AP): This provides a total bar to defamation proceedings in the event of statements made in the course of:
    1. judicial proceedings (in Court or similar occasions like a Court) on matters which are relevant or incidental to the proceedings.
    1. Report on Judicial Proceedings (stories about what has happened in a civil or criminal trial as long as the report is fair, accurate and contemporaneous
    1. Parliamentary Proceedings: words spoken in, or incidental to, parliamentary debates by MPs (or other officers of Parliament).
    1. Solicitor/ Client communications
    1. Statements between officers of the state in the course of official duties, or statements made in reports of various statutory officers and bodies
  • Qualified Privilege (QP): There are two types of QP.

Statutory QP applies to publication of any report mentioned in legislation, fair and accurate on a matter of public interest, published without malice.

The other type is what is referred to as Common Law QP: This arises on occasions where a statement is made where there is a reciprocal relationship of duty and interest between the person making this statement and the person receiving it. Examples of such occasions include job references given, reports to an employer generally, reports to the Police (although these may be subject to AP), reports to social services. There is no definitive list but there are principle features which must be satisfied to claim QP in a defence: there is a reciprocal relationship (legal, social or moral) and there is no evidence of malice.

Some malice is not enough; primarily acting to damage a reputation must be shown by the claimant, if QP is raised a defence, either with knowingly false facts or such facts which were false and could have been easily verified (the defendant was reckless as to whether it was true or not).

Are defamation cases hard to win?

Like most court proceedings, defamation claims rely on the evidence available and the ability of the claimant to set out their claim, and the defendant to set out their defence. While we have assisted many people who have initially started their claim with a lawyer (referred to in the Courts as a “litigant in person”), we believe that the best way to succeed in any defamation claim is to seek advice and assistance from a solicitor specialising in defamation. This is a particularly so if you are up against a well-funded and resolute defendant.

How do you file a defamation claim/lawsuit?

You can either use a solicitor to do it for you at Court (with the appropriate court fee) or you can do it yourself. All defamations claims in England & Wales must be issued in the High Court, or one of the District registries of the High Court in large cities, using an N1 claim form.

What is, or considered to be, defamation of character in the workplace?

The normal rules of what is defamatory (libellous or slander) apply in the workplace. However, what is different about a workplace is that the defence of qualified privilege will usually be more available as a defence to any potential defendant in addition to the other defences.

In similar situations we have given advice on complaints made by customers to managers about an employee client’s conduct, complaints or gossip by a fellow employee regarding our client, allegations made in the course of grievance investigations or in the course of employment tribunal process. Other situations include press releases or statements to the press given by an employer while our employee client is suspended or just left the company.

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.

What are the usual remedies for defamation -libel and slander. Can I get an apology?

The usual remedies available from the Court for defamation (libel and slander) are damages with a contribution to your costs if you win. If there is a risk that the allegations may be repeated the Court may also make an order preventing republication of the allegation (an injunction). The Court cannot order an apology.

Can I get an injunction to stop something being published?

Usually a court will not grant an injunction on the basis of a potential libel/slander to stop something being published or broadcast. This is particularly so if the defendant would claim that what they have published is true.

The more productive route is for us to contact the other person. We would seek to dissuade them from publishing (or even amending what they will say) by showing that what they intend to publish is false and that they will be at serious financial and possible reputation risk if they go ahead and face a claim.

Do I have to go to Court?

You don’t need to go to Court to get an apology or any other remedy available in defamation. Most matters settle by negotiation without a trial or even court proceedings being issued. The Court positively encourage the parties to settle without court proceedings and they may penalise those who do not attempt to do so or even if they refuse to enter into discussions.

In any event the first move once something has been published is to send a letter of claim prepared in accordance with the Defamation Pre-Action Protocol. This is Court appointed protocol setting out guidance in which the parties to the claim are encouraged to attempt to settle.

This “Pre-Action Letter” or “Letter before Claim” would seek a correction if necessary along with damages and legal costs. If the matter doesn’t settle at this stage (many do) then proceedings may be issued at Court. There will still be opportunities thereafter all the way to trial to try and secure a settle including an apology.

Is there a time limit to start a defamation claim?

This is usually 12 months from first publication of the allegation(s). You should take action as quickly as you can to allow for a pre-action letters to be sent. The Courts will require you to take prompt action and not to delay. You should contact a solicitor as soon as possible after publication.