These notes will start with an explanation of what is and is not “defamatory”, but first something needs to be got out of the way. Sometimes people use the term “defamatory” only for statements that are untrue. Indeed there can be quite heated arguments about it. As will, I hope, be clear, it is better to think of “defamatory” as referring to certain kinds of statements that hurt someone’s reputation even if they might be quite true.
In other words the statement:
“Lord Archer is a convicted criminal”
is defamatory (but true).
Defamation is an umbrella term for two distinct kinds of claim (technically known as causes of action), which are:
libel - written, broadcast or performed statements
slander - spoken (or otherwise impermanent) statements
Since defamatory material published on websites will be libel, the practical differences between libel and slander are left to Appendix [sec:applibelvslander].
Defamation is part of an area of law known as the ``law of tort” from which we derive two eye-watering words: tortious and tortfeasor. The following is an outline of how a defamation (and indeed most tort claims) is carried out. I am simplifying by omitting applications and injunctions which can happen at any time.
If someone feels they have been defamed they will do the following:
They should (on pain of costs penalties) carry out the pre-action protocol requiring them to write a letter before action to the person/people they intend to sue.
They will fill in a claim form (old word “writ”) and ask a court to issue it.
They are now know as the claimant (old word ``plaintiff” in Scotland ``pursuer”) - we will call them “C” throughout.
Either with the claim form, or shortly afterwards, the claimant must also serve what is known as a particulars of claim - which sets out the details of the claim which they are bringing.
They will then serve it (i.e. give it to one way or another) on one or more people who will then be defendants (affectionately “D”)
The defendants will then create a document known as a defence which will do two things:
deal with each point in the particulars of claim saying whether the defendant denies it, agrees that it is true, or does not know;
sets out the defendant’s positive defences and any facts that the defendant relies on.
Many things can happen: the court will have one or more case management conferences or hearings to decide how the case should proceed and when evidence should be served; either party may make applications (and they usually will as we shall see), injunctions may be granted or discharged and so on….
Eventually the parties will have exchanged witness statements (the written evidence the witness is to give) and then there will be a
Trial
After the trial if the claimant has one they may seek to enforce any judgment; there may be an appeal etc.
In the civil procedure rules anyone can make what is known as an “application” at any time.[1] Applications are very flexible. In rare circumstances:
they can be made even before proceedings have started
they can be made by non-parties.
In defamation proceedings the applications one is likely to see are:
for an order to stop publication (called an injunction), perhaps before publication has happened and even without the knowledge (at first) of the defendant. Such an injunction would constitute what is known as “prior restraint” and would constitute a serious restriction on free speech. As a result the courts are very reluctant to make such orders except in special circumstances.
to find out information, particularly the identity of a proposed defendant, from an innocent third party - a Norwich Pharmacal order.
to ask the judge to decide a question of law
for summary judgment (on the grounds that the other party has no reasonable prospect of success)
for striking out (i.e. a deletion of part of one sides pleadings on the ground that they are irrelevant, wrong in law or disclose no cause of action)
… a myriad of case management orders
To sue successfully for defamation C will need to prove:
A statement S
Identifiably about C
S has the meaning M
M is defamatory of C
S was published by D
The publication of S has caused or is likely to cause serious harm to the reputation of C
The requirement of serious harm was added by the Defamation Act 2013.[2] There has been very little consideration of what it means by the courts, but it is likely to make life more difficult for claimants.
A claimant will have to prove that their reputation either has suffered serious harm or that it is likely to do so. There will be some cases where serious harm is obvious (such as alleging that someone is a terrorist[3]) but in many cases the claimant will have to produce some evidence of harm to their reputation or risk having the claim dismissed at an early stage.
In the first case to consider what “serious harm” meant,[4] the defendant newspaper had published an apology for their defamatory article. The judge decided that meant that there was unlikely to be any risk of future harm – because anyone searching the internet for the article would almost certainly find the apology – and since there was no proof that any harm had been suffered, the claim was dismissed.
Cooke established that the time at which to test whether serious harm had taken place (or was likely to take place) was probably the date of issue (i.e. when the claim was started) rather than before. This seems to mean that a newspaper that is threatened with a libel claim can quickly apologies and avoid paying damages, although they may have to pay the claimant’s costs of putting together their complaint.
It is far from clear exactly what you would need to do in order to prove serious harm.
For a “body that trades for profit”, “serious harm” requires that the body has suffered “serious financial loss”.[5] I hope that this will make it more difficult for a commercial organisations to sue individuals over trivial alleged libels, such as poor reviews, as, for example, Pimlico Plumbers threatened to do last year over reviews on Yelp.
The courts have made a number of efforts to define what it is for a statement to be “defamatory”. In Thornton v Telegraph Media Group[6], the judge listed 9 well-known examples, including
... words [that] tend to lower the plaintiff in the estimation of right-thinking members of society generally?[7]
That expression would seem to apply only where the claimant has done something wrong. Surely “right-thinking members of society” ought not to treat someone less well because of something that was not their moral fault. However, the courts have held that defamation does include statements that carry no moral criticism, for example that they have a disease.
For example in Youssoupoff v Metro-Goldwyn-Mayer Pictures (1934) 50 TLR 581 the court held that an allegation that someone had been raped was defamatory. To some extent this may reflect prevailing social attitudes in the 1930’s. The court held that a statement is also defamatory if it “tends to make the plaintiff be shunned and avoided and that without any moral discredit on [the plaintiff’s] part”, which would include an allegation that they were insane or had an infectious disease.
In some cases, a statement that held someone up to “contempt, scorn or ridicule” has been accepted as defamatory. In Berkhoff v Birchill, Stephen Berkhoff sued Julie Birchill for implying that he was “hideously ugly” in a ridicule alone might be defamatory
likely effect of the words (not the actual effect)
on “right thinking persons generally” – see Byrne v Deane for an example of something that was not defamatory because it claimed someone had acted lawfully.
A useful exercise is to think through the following imputations and consider whether they are (or are not) defamatory.
C is insane
C has HIV (does it make a difference whether C is “innocent” or contracted HIV through promiscuous gay sex)?
C has been raped
C has/had heart disease (what about ’flu?)
C is illegitimate
C has leprosy
X is a better journalist than C
C is a lawyer of only average ability
In deciding what something means (or what meanings it could have) the courts have developed a variety of approaches and rules.
only one meaning - even though a statement may have multiple meanings, juries are directed to determine “the” meaning of a statement.
intention is irrelevant (though it can be relevant to the Defamation Act 1996 and to some defences)
There are in fact two kinds of meaning that can be pleaded by a claimant. The first is what is known as the “natural and ordinary” meaning of the words.
natural and ordinary meaning includes imputations and inferences
“Have you heard that Fox was reported twice as a spy” - defamatory implication that he was guilty.[8]
hearer must be reasonably justified in understanding words to be defamatory
not strained, forced or utterly unreasonable
not enough that it might be understood in a defamatory sense (see Capital and Counties Bank v Henty)
“suspicious people might get a defamatory meaning out of ‘chop and tomato sauce’”[9]
The ordinary reasonable fair-minded reader has been constructed by the courts as the person from whose point of view the meaning is to be assessed. Some of the qualities such a person is thought to have are:
reasonable intelligence
ordinary person’s general knowledge
may include implications and inferences
fair minded and reasonable
may be guilty of a certain amount of loose thinking
does not read a sensational article with cautious and critical care
goes by broad impression
does not construe words as would a lawyer
The word “innuendo” is used in two ways by defamation lawyers. The first in a non-technical sense to mean an inferred or implied meaning into words, the second is the label attached to a special kind of meaning that can be pleaded by a claimant. To distinguish it from the normal use of the word it is often called the “true” or “legal” innuendo meaning.
A legal innuendo is a meaning that a statement possesses because of the knowledge of additional facts that are not general knowledge. It may be that only some people to whom the statement is published are aware of those additional facts (and the claimant will have to prove it). That additional knowledge can make something that looked innocent into a defamation and vice versa.
A legal innuendo gives rise to a separate cause of action. I can sue once on publication to the general public and another time on publication to those with special knowledge.
Obviously a defendant can defend themselves by denying what the claimant claims (eg by denying that the statement was defamatory or was even published). But the publication of a defamatory statement can be defended in certain circumstances:
Truth – the defendant proves the imputation conveyed by the statement is substantially true[10]
Privilege – otherwise known as “absolute” privilege: the defendant proves that the statement was made on a privileged occasion. For example
reports of a statement made in Parliament
contemporaneous reporting of legal proceedings
statements made in legal proceedings
(possibly) statements made to one’s lawyer in obtaining legal advice (there is some doubt over this - it may just be a qualified privilege.
Qualified privilege
Honest opinion
Offer of amends
Qualified privilege and fair comment are defeated by the claimant proving malice. Like everything else in defamation “malice” has a peculiar technical meaning. Simply put it implies either that the statement was made for an improper motive or in the absence of honest belief in its truth.
It is a defence to prove that the “imputation” conveyed by the defamatory statement is true.
At common law there was a serious limitation on this defence comes in the form of the repetition rule. Where a defendant repeats a statement made by another it is not enough to prove that the statement was made, but that the statement was true.
For example even if the statement:
“There is a rumour that C murdered X”
were literally be true, the defendant would usually have to prove that C did murder X to defend a libel claim.
In Lewis v Daily Telegraph Ltd[11] Lord Devlin observed[12] that:
“… you cannot escape liability for defamation by putting the libel behind a prefix such as ‘I have been told that …’ or ‘It is rumoured that …’ and then asserting that it was true that you had been told or that it was in fact being rumoured. You have … to prove that the subject matter of the rumour was true.”
this means that:
adding “allegedly” after a possibly defamatory quote from someone else does no good at at all
publishing a response by the defamed person, or noting that something is merely someone else’s opinion is no protection.
Sometimes a statement that implies wrongdoing by C may means something a little weaker than that C is actually guilty of the wrong. Consider:
“Officers of the City of London Fraud Squad are inquiring into the affairs of Rubber Improvement Ltd. and its subsidiary companies. The investigation was requested after criticisms of the chairman’s statement and the accounts by a shareholder at the recent company meeting.”
What could that mean? Its direct meaning is easily justifiable (the Fraud Squad were investigating) but is that all? The Plaintiff in the case pleaded that it meant that they were guilty of fraud. The House of Lords decided that was going too far, but that it could mean that they had so conducted themselves as to attract suspicion.[13] [1964] A.C. 234
The courts have developed what are called the three Chase levels of meaning:[14]
guilty
reasonable grounds for suspicion of guilt - must be based on the conduct of the claimant (the conduct rule) and cannot be based merely on the fact that the police decided to investigate
reasonable grounds to investigate guilt
What is unclear is whether the “repetition rule” or the division of meanings into Chase levels of meaning has been abolished by the Defamation Act 2013.
Co-ordination of duty and interest
D had a duty or interest in publishing the statement
the recipient of the publication had a duty or interest in receiving it
Defeated by malice
Examples
confidential references
communications amongst the team
This defence seems to be intended to allow people to express honestly held opinions. It applies if three conditions hold:
the statement was a statement of opinion
the basis of that opinion was indicated
an honest person could have held the opinion, on the basis of
any fact which existed at the time of publication
anything asserted in a privileged statement
matter of public interest
peer-reviewed statement in scientific or academic journal
report of court proceedings
various other statutory privileged reports
The Claimant can defeat defence if they prove that D did not hold the opinion, except where D published someone else’s statement. In that case the Claimant can defeat the defence if they show that the defendant knew, or ought to have known, that the original author of the statement did not hold the opinion.
Why be afraid of a defamation claim?
Injunction
May be made in the interim
Balance of convenience test for interim injunctions
Damages
Potentially very large
Decided by juries, although the Court of Appeal does exercise some control over it. Juries sounds all very wonderful in theory but they have absolutely no sense of proportion when it comes to damages
Costs - also potentially vast since defamation cases are usually heard in the High Court, are legally complex, dealt with by a very small group of specialised lawyers and involve long trials by jury. In general defamation claims are very attractive to lawyers who can laugh all the way to the bank.
An example of excessive awards is a case where an article claiming Elton John had a habit of chewing but not swallowing (in fact spitting out) food; had been observed doing it and medical evidence suggested this was a sign of Bulimia. The jury awarded compensatory damages of £75,000 (reduced by the Court of Appeal to £25,000).
An offer to
make and publish:
a suitable correction; and
a sufficient apology
pay compensation to be agreed or determined
Plus
not an admission of liability
acceptance prevents future claim
Minus
only useful for innocent defamations
may not use another defence
[1] Readers familiar with pre-6th edition Magic: the Gathering will find applications reminiscent of interrupts.
[2] s1
[3] Cooke v MGN [2014] EWHC 2831 (QB) [43]
[4] Cooke v MGN [2014] EWHC 2831 (QB)
[5] s1(2)
[6] [2010] EWHC 1414 (QB)
[7] Sim v Stretch [1936] 2 All ER 1237
[8] Fox v Goodfellow (1926) NZLR 58
[9] Lord Justice Scrutton in Bennison v Julton, The Times, April 13, 1926
[10] s2, Defamation Act 2013
[11] 1964 A.C. 234
[12] at p.283–4
[13] Rubber Improvement Ltd v Daily Telegraph
[14] Chase v News Group Newspapers [2003] EMLR 11