Defamation

Defamation protects a person’s reputation from unjustified attack. It occurs when false statements are made that damage another’s reputation in the eyes of reasonable members of society. English law divides defamation into libel (written or permanent form) and slander (spoken or transient form). The law aims to balance freedom of expression with the right to reputation, and is primarily governed by the Defamation Act 2013 alongside long-standing common law principles.

What Is Defamation?

Definition:

A statement is defamatory if it tends to lower the claimant in the estimation of right-thinking members of society or causes them to be shunned or avoided.

Key case: Sim v Stretch [1936] – defined the modern test.

Forms:

Libel: permanent form (writing, print, broadcast, online). Actionable per se (without proof of damage).
Slander: spoken or temporary form. Usually requires proof of actual damage, except for certain categories

Elements of Defamation

To succeed, the claimant must prove three key elements:

(a) Defamatory Statement

The statement must injure the claimant’s reputation by exposing them to hatred, ridicule, or contempt.

Berkoff v Burchill [1996] – statements describing an actor as “hideously ugly” were capable of being defamatory because they lowered him in public estimation.

(b) Identification

The statement must refer to the claimant, either directly or by reasonable inference.

Hulton v Jones [1910] – fictional story using a real person’s name led to liability even though the publisher didn’t intend to refer to him.
Group references can qualify if the group is small and identifiable (Knupffer v London Express Newspapers [1944]).

The statement must be communicated to at least one third party.

Theaker v Richardson [1962] – sending a defamatory letter likely to be opened by someone other than the recipient counted as publication.
Internet posts and social media shares count as publication (Defamation Act 2013, s.8 introduces a single-publication rule).

Serious Harm Requirement – Defamation Act 2013, s.1

A statement is not defamatory unless it has caused or is likely to cause serious harm to the claimant’s reputation.

For companies, serious harm means serious financial loss (s.1(2)).
Lachaux v Independent Print Ltd [2019] – clarified that claimants must show actual or probable harm, not just that the words are inherently defamatory.

Defences

Defamation law recognises several statutory and common law defences:

(a) Truth (Justification) – s.2 Defamation Act 2013

It is a complete defence if the statement is substantially true.

(b) Honest Opinion – s.3 Defamation Act 2013

Applies to statements of opinion (not fact) honestly held by the defendant, based on existing facts or privileged material.

Joseph v Spiller [2010] – clarified requirements for the defence.

Protects publication where the defendant reasonably believed it was in the public interest.

Economou v de Freitas [2018] – court applied this defence to media coverage of a rape allegation.

(d) Privilege

Certain situations are protected from liability even if statements are false:

Absolute privilege: e.g. parliamentary debates, court proceedings.
Qualified privilege: e.g. fair and accurate reporting, references given in good faith.

(e) Innocent Dissemination – s.10 Defamation Act 2013

Protects website operators or intermediaries who were not the author, editor, or publisher and took reasonable care once notified.

Remedies

Damages – compensate for harm to reputation and distress.
Injunctions – prevent further publication.
Correction or Apology – may be ordered or agreed.
Summary Disposal – under s.8 Defamation Act 1996, for minor cases.

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