INFORMATION SHEET ON LIBEL AND SLANDER

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1 PAYNES SOLICITORS INFORMATION DOCUEMENTS COPYRIGHT 2009 PAYNES SOLICITORS solicitors.com solicitors.com INFORMATION SHEET ON LIBEL AND SLANDER Essentially, libel and slander are legal claims that protect an individual s reputation against defamation. In practical terms, a defamatory statement is one which injures the reputation of another person: that is if it tends to lower him or her in the estimation of right-thinking members of society generally Within what time period must libel or slander proceedings be commenced? Usually within one year of the date of publication of the material containing the defamatory allegations complained of. However, in exceptional circumstances the court can extend this time. What is the difference between libel and slander? Libel concerns the written word and material broadcast on television or radio. Slander concerns the spoken word. Who can sue for libel or slander? Individuals, companies, firms, charities and trade unions can all bring proceedings for libel and slander. Governmental bodies (local authorities, central government bodies) and political parties cannot - but if the allegation reflects on them, individual councillors, civil servants and politicians can all bring actions in their own name. What must a person or company prove in a libel or slander action? When an individual or company brings a libel or slander action, they must show:- 1. that the words are defamatory of them; 2. that the words would be understood to refer to them by even one other person; and 3. that the words have been published to a third party. Page 1

2 A libel claimant does not have to prove that the words are false or to prove that he has in fact suffered any loss. Damage is presumed. A slander claimant will need to prove that the defamatory allegations caused actual damage, unless the slander is within certain categories. When are words defamatory? There is no set definition of 'defamatory'. A statement may be considered to be defamatory if it tends to do any one of the following: a. lower the claimant in the estimation of right-thinking members of society generally; b. disparage a claimant in his business, trade, office or profession; c. expose the claimant to hatred, ridicule or contempt; or d. cause the claimant to be shunned or avoided. Whether or not a statement has that effect is measured against the standard of the reasonable man generally and not a limited class of people who may have different standards from the majority of members of society. Common examples of what may be considered defamatory are allegations that suggest a person is: Immoral Dishonest Corrupt Insolvent or in financial difficulties Incompetent The producer of shoddy goods Standards of morality constantly change and so what would have been immoral twenty years ago may not necessarily be so today. Determining the meaning of words gives rise to a great degree of uncertainty in a libel action. It is not only the superficial meaning that may be defamatory but also any 'hidden' meaning which can be inferred. There are three levels of meaning to be aware of: 1. the 'natural and ordinary meaning', in other words the meaning on the face of the words; Page 2

3 2. inference, in other words a meaning that can be read between the lines without any specialist knowledge; and 3. innuendo, a meaning which can be attributed to the words by readers who have a specialist knowledge. The onus is on the claimant to show the facts giving rise to the innuendo and that these facts are known to the readers. For example, to say that a person eats meat is not defamatory on its face; if, however, some readers know that the person professes to be a committed vegetarian, the statement may be considered defamatory, suggesting he is hypocritical or dishonest. The words must be put in their full context, including headings and captions to any photographs. For the purpose of deciding whether words are defamatory, the intention of the author is irrelevant. All that matters is the impression which the words give to readers. It is important to bear in mind that a person can sue for the repetition of a defamatory statement made by somebody else. However if it is made absolutely clear, when the words are read as a whole, that there is no truth in a rumour then this may be sufficient to remove the defamatory 'sting'. Be aware however that it is often considered that there is 'no smoke without fire' and it is possible that the publication even of rumour can be defamatory. Must the defamatory material refer to the claimant? Yes. Clearly if someone is named they are identifiable to readers. However, even if the claimant is not named he may still be identifiable to some readers. It is sufficient that he is reasonably identifiable to even one person with whom he is acquainted. For instance, people with whom an individual works may know to whom the allegation is referring from its context. If a defamatory allegation is made of a large, indeterminate group, no one individual may be able to show that the words would be understood to refer to him. However, if the group is determinate and comprises only a small number of people, it may be possible for every member of that group to sue. To how many people must the defamatory allegations have been published? Making a defamatory allegation (whether orally or in writing) even to one individual other than the claimant himself is sufficient to give rise to a claim. However, the Court has the Page 3

4 power to stop a case proceeding in limited publication cases if it would be disproportionate for them to proceed to trial. Any communication to anyone other than the person actually defamed is, in law, capable of constituting publication. A draft manuscript sent by an author to his or her editor is a publication. A claimant can take action against any or all of those involved in the process of publication, including the author who wrote the book, the editor responsible for the content of the book and the company which publishes it. Who can be sued? Any person, company or other legal body involved in publishing the defamatory material. This includes the author, any editor and any publishing company. Sometimes, distributors of defamatory material can also be sued. Can the claim be defended? There are three main defences available to a defendant in a libel action; namely, justification, fair comment and privilege. 1. Justification The defence of justification, or truth, is a complete defence to a libel action. The onus is on the defendant to prove that the allegations are true. Whilst the defendant does not, necessarily, have to prove the truth of each and every fact, he does have to prove the truth of the substance of the allegation, the defamatory 'sting'. 2. Fair comment Expressions of opinion, based upon true facts, made in good faith and without malice on a matter of public interest may be protected. Note the distinction between fact and opinion. The facts must be proved to be true and the opinion, the subject of the fair comment defence, must be honest. Therefore the facts upon which the comment is based must be correct. It does not matter if the view expressed is extreme, so long as it is an honestly held view and not malicious. For this purpose, 'malice' may be established if it can be proven that the commentator did not genuinely hold the view he expressed. Page 4

5 3. Privilege The law recognises that there are circumstances in which it is in the public interest to permit greater freedom of speech. Publication on a matter which is privileged is protected from a libel action either by absolute privilege, which is a complete bar to libel actions, or qualified privilege, which protects the statement so long as it was published without malice. In the case of qualified privilege, malice may consist in either:- a. awareness of or recklessness as to the untruth of the statement (as above); b. a dominant improper motive in making a statement believed to be true; or c. misuse on the occasion for which privilege exists. Absolute privilege Examples of situations covered by absolute privilege include: fair, accurate and contemporaneous reports of proceedings in public before UK courts, the European Court of Justice, European Court of Human Rights and certain international tribunals; statements made in Parliament and official reports of parliamentary proceedings (includes select committee proceedings but not statements made by MPs outside Parliament); This defence gives complete protection to fair, accurate and contemporaneous court reports. It cannot be defeated by proof of malice. Generally a newspaper or magazine article is treated as being contemporaneous if it is published as soon as possible after the statements are made. This will normally be in the next available issue following the proceedings. Qualified Privilege Qualified privilege exists "for the common convenience and welfare of society because the law accepts that there are occasions when persons should be at liberty to express themselves freely even when in doing so a third party is defamed." Qualified privilege attaches to three main groups of publications: Reports of proceedings listed in Schedule 1 Defamation Act 1996 Page 5

6 The Defamation Act 1996 contains two lists of publications which are covered by qualified privilege. Part I covers fair and accurate reports of public proceedings in legislatures, courts, government-appointed public inquiries, international organisations or international conferences anywhere in the world. The report does not have to be contemporaneous. Part I also covers the fair and accurate publication of documents authorised by those bodies, as well as any documents open to public inspection. Qualified privilege in respect of material covered by Part II differs from that in Part I because, in addition to being capable of being defeated by malice, Part II privilege will also be defeated if the claimant was not given a right to reply to the defamatory allegation. Further, the reply must be published in a 'suitable manner'. Part II covers fair and accurate reports of the following: notices issued for the information of the public by the legislatures of member States, the European Parliament, European Commission, international organisations or international conferences; documents made available by courts in member States or the European Court of Justice; public proceedings of local authorities, justices of the peace and other bodies set up by statute in the UK or other member States; proceedings of lawful public meetings in member States held for the furtherance or discussion of a matter of public concern; proceedings at general meetings of public companies formed in the UK or other member States, and certain documents circulated to the members of such companies; and findings or decisions of a broad range of business, sporting, cultural and charitable associations in the UK or other member States. Reports of parliamentary and judicial proceedings Fair and accurate reports of parliamentary and judicial proceedings are protected Page 6

7 by qualified privilege at common law, whether published contemporaneously or not. However, the common law has become less relevant in this area since the Defamation Act 1996 came into force, as it confers qualified privilege on a wide range of judicial proceedings (see above). Defamatory statements made under a social, moral or legal duty to a person who has a corresponding interest in receiving them. This category of qualified privilege has proved difficult for the courts to define specifically. Whether a social or moral duty exists depends on the circumstances of the case, and the courts have not limited the interests to which the defence applies, except to state that the interest must be a legitimate common interest and not a matter of mere gossip or curiosity. Publications between an employer and employees are likely to be covered by this privilege as are publications for the purposes of disciplinary or other employer/employee proceedings and between a trade union and its members. In recent years the law has developed, under this category of qualified privilege, a defence which is sometimes termed that of "responsible journalism on a matter of public interest". The law recognises (Reynolds v Times Newspapers) that there are occasions when the public interest requires that publication to the world at large should be privileged. In determining whether the public at large has a right to know the published information, the court should be concerned to assess whether the information is of sufficient value to the public that, in the public interest, it should be protected by privilege in the absence of malice. In making the assessment, Lord Nicholls in his Judgment in Reynolds set out ten "illustrative circumstances" which required to be considered: "1. The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true. 2. The nature of the information, and the extent to which the subjectmatter is a matter of public concern. 3. The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories. Page 7

8 4. The steps taken to verify the information. 5. The status of the information. The allegation may already have been the subject of an investigation which commands respect. 6. The urgency of the matter. News is often a perishable commodity. 7. Whether comment was sought from the claimant. He may have information others do not possess or have not disclosed. An approach to the claimant will not always be necessary. 8. Whether the book/article contained the gist of the claimant's side of the story. 9. The tone of the book/article. A report can raise queries or call for an investigation. It need not adopt allegations as statements of fact. 10. The circumstances of the publication, including the timing." What is the difference between libel/slander and malicious falsehood? In malicious falsehood the claimant must prove:- 1. the words are false; 2. the words were published maliciously; and, 3. special damage has flowed from their publication unless the publication falls within certain criteria. Note: the words need not be defamatory. They must be false. Also note: the claimant carries the burden of proving all three elements which makes the claim more difficult than a libel claim. Does normal libel law apply to s and publications on the internet? Yes. If a Claimant is successful in a claim what might be recovered? Compensation for damage caused by the defamatory publication and to vindicate reputation, an apology often in agreed terms and an undertaking not to repeat the defamatory allegations. The damages can be from one penny to upwards of 250,000 Page 8

9 depending on the seriousness of the allegations and the way those being sued behave. In addition, any actual loss caused by the defamatory publication can be claimed. How expensive are libel and slander proceedings? Substantial proceedings are very, very expensive. If we considered you had a case worth pursuing we may be able to assist using our Conditional Fee Agreement (no win, no fee) scheme. It must be remembered that this would not shield you form paying the costs of the other part if you lost the case there are companies providing after the event legal expenses insurance but your case would have to be a very strong one for an insurance company to take the risk. Page 9

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