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2 Defamation, Libel, Slander and Defences Lecture

Defamation is the act of publishing an untrue statement which negatively affects someone’s
reputation. Taken at face value this definition is obviously far reaching. Luckily, both common
and statute law has developed a framework to limit the extent of the tort of defamation.

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.

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;

About the claimant;

Which is published; and

Which has caused or is likely to cause serious harm to the claimant’s reputation.

Libel and Slander

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. They both remain privy
to the general principles governing the tort of defamation.

Libel
Libel refers to permanent defamatory statements, such as that which is written, broadcast, or
otherwise performed; s.1 of the Defamation Act 1952; s.28 of the Cable and Broadcasting Act
1984; s.4(1) of the Theatres Act 1968.

The ‘permanence’ requirement doesn’t mean ‘forever’, 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.

Words are not necessary; it merely must be a type of permanent communication, Monsoon v
Tussauds Ltd [1934] 50 TLR.

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. The key example is spoken word.
Gestures can also constitute slander, since they are a form of non-permanent communication.

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, Speight v Gosnay [1891] 60 LJQB 231, and loss of consortium, 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, as per Gray v Jones [1939] 1 All ER 798.
Secondly, if the statements are calculated to disparage the claimant in his or her profession,
business or office, Foulger v Newcomb [1867] LR 2 Ex. 327. 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, Jones v Jones [1916] 2 AC 481; Thompson v Bridges [1925] 273 SW 529.

Slander is not a criminal offence.

Elements of Defamation

(1) The Statement Must Be Defamatory

The definition of a defamatory statement is found in the common law. 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 [1840] 6 M&W 105
where Parker B defined it as “[a] publication, without justification or lawful excuse, which is
calculated to injure the reputation of another, by exposing them to hatred, contempt or ridicule”.

This definition can be added to that employed in Sim v Stretch [1936] 2 All ER 1237, where
Lord Atkin noted that the definition had widened to include words which “tend to lower the
plaintiff in the estimation of right-thinking members of society.”

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, 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, Penfold v Westcote [1806] 2 B &
P (NR) 335

With the general definition above in place, the nature of a defamatory can be best understood
through its application, as in Byrne v Deane [1937] 1 KB 818 where the difficulty in applying
defamation was shown to involve not only evaluating the words used and their context, but also
the meaning that might reasonably be given to those words.

The scope of defamation can be seen in a wide range of scenarios. In Berkoff v Birchill [1996] a
statement not ordinarily defamatory was held to be so due to the claimant’s profession. In
Donovan v The Face [1992] (Unreported) an accusation itself was not defamatory, but the
implication was that the claimant was intentionally deceiving the public. See also the case of
Cassidy v Daily Mirror Newspapers Ltd [1929] 2 KB 331.

Defamation also need not be particularly insidious, Tolley v Fry & Sons Ltd [1931] AC 333.

(2) 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 [1971] 1 WLR
1239.
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.

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 claim here, failed – there was nothing in the article
personally identifying the claimant.

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.

(3) 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 [1891] 1 QB 524. Lord Esher MR provided that “[t]he making
known of the defamatory matter after it has been written to some person other than the person of
whom it is written”. Intention is also necessary.

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. See the case of Huth v Huth [1915] 3 KB 32 to demonstrate a lack of
requisite foreseeability.

(4) 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.

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.

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. Whilst an inaccurate
reference can be damaging, it will not give rise to a defamation claim here. 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:

Seriousness;

Subject matter;

Source;

Verification;

Status;

Urgency;

Comment from the claimant;

Balance;

Tone; and

Circumstances.

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.
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.

Website Operators

As per s.5 of the 2013 Act, 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.

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.

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. This does not apply to publication in a
materially different form.

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.