Defamation – A Basic Guide – What Do I Need To Prove To Bring A Defamation Claim?

Someone making an untrue statement about you or your business can harm your hard-earned reputation. With the rapid revolutionising of digital media and use of various social platforms, there are more ways than ever before that the reputation of an individual or business can suffer damage.

What is defamation?

Defamation describes an untrue statement that has been presented as fact and causes harm to the individual or business to which it relates. The statement has to lower the claimant in the estimation of right thinking members of society generally. Defamatory statements might include things like allegations of dishonesty, incompetence, immoral or illegal conduct etc.

Generally, a claim for defamation must be commenced within one year from the date of publication of the defamatory statement. For further information on time limits in defamation claims read our blog: What Are The Time Limits in Defamation Claims?

Distinction between libel and slander?

Where a statement is identified as defamatory, it is then categorised as either a libel or slander.

• Libel – the general rule is that, if the publication is in permanent form such as a book, magazine or newspaper, then it is libel.
• Slander – the general rule is that, if the publication is in transient form, such as speech, then it is slander.

Signs, gestures, photographs and pictures can also give rise to a claim in defamation.

As is very common with various social media platforms, what then happens if someone makes a spoken comment that is defamatory which is then transferred by another into written form? The speaker will be guilty of slander and the publisher of libel.

What do you need to prove to bring a defamation claim?

The elements you would need to prove to bring a defamation claim are as follows:

1. A defamatory statement was made

To examine if a statement is defamatory or refers to the claimant, the court must first decide what the words in question actually mean. This is a complex issue. The court will attribute an ‘ordinary or natural’ meaning to the words complained of using the benchmark of what the reasonable person would understand by the words.

Alternatively, the court may conclude that the words form an innuendo meaning (i.e. understood by a certain group of the population with a certain knowledge by which they can understand the special meaning). The test is, what a reasonable person with the relevant knowledge would understand. The court accepts that the reader may draw inferences from the statement and those inferences may mean that a seemingly innocent statement is in fact defamatory.

The innuendo meaning can be false or true:

• False innuendo – an alternative meaning which the ordinary, reasonable person who can read between the lines would infer from the words
• True innuendo – when the words that appear innocent to some people appear as defamatory to others because they possess special knowledge or extra information

The publishers intended meaning is irrelevant. Instead, the court will establish the way in which the words were understood.

2. The statement caused, or is likely to cause, ‘serious harm’ to the claimant

The Defamation Act 2013 introduced a new test of ‘serious harm’ for determining whether or not a statement is defamatory, intending to raise the bar for bringing defamation claims. A statement will not be defamatory unless the claimant proves that it has caused or is likely to cause serious harm to their reputation. The requirement to prove ‘serious harm’ is a complex issue and one to be carefully considered with a legal advisor.

In brief, whether serious harm has been suffered must be determined by reference to actual facts, meaning the impact of the statement, not just the meaning of the words. The courts have acknowledged that inferences of fact can be drawn from the circumstances and context of the publication, including matters such as the extent and nature of its readership or audience and the gravity of the statement.

Where a social media posting is defamatory, the damage done by this can be significant. A social media post can be ‘shared’, ‘re-tweeted’, ‘liked’ and thereby reach a wide audience, across the world. The more readers the offending post has, the greater the likelihood of reputational damage.

There exists an additional test in law that applies to a body trading for profit, namely a requirement to show that a statement has caused or is likely to cause serious financial loss.

3. The statement refers to the claimant

The statement has to refer to the claimant and, in many cases, this is a straightforward matter. A claimant is either directly identified by name or described in such a way that a reasonable person would deduce the statement refers to the claimant.

4. The statement was published

A defamatory statement must be communicated to a third party, in other words not just to the claimant.

For slander claims (oral publication), the words must be apprehended and understood by a third party. For libel claims (written publication), the words must be read and understood by a third party. Therefore, if a statement is published but no one reads it/hears it, there is no claim for defamation.

5. There is no lawful justification or other defence.

Some defences available to a claim of defamation are:

• Truth
• Honest opinion
• Privilege (absolute or qualified)
• Publication of matter for public interest
• Innocent dissemination
• Consent

For further information on the defences to defamation see our blog: What Are The Defences Available in Defamation Claims? 

Defamation claims have very tight deadlines (1 year) and so if you want to bring a defamation claim or find yourself on the receiving end, then you should seek appropriate legal advice at an early stage to see whether court proceedings can be avoided.