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Defences to defamation

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Having a presence on social media as a business can be valuable. It can increase your audience, boost your brand, and give the ability to communicate with potential customers instantly.  However, social media does also create risks such as defamation. Material posted on social networking sites such as Twitter and Facebook can be malicious and inaccurate. The ability to be anonymous can encourage some users to behave in a manner that they would not use in other forms of communication.

Defamatory statements are either considered to be libel or slander. Libel is a statement that is made in permanent form. Such as, written/printed words, online material, movies, radio broadcasts, or theatre. Slander is committed in a temporary form, such as gestures or spoken words.

It has been asserted that a statement is defamatory when an ordinary, reasonable person when reading or hearing the statement;

  • thinks less of the person referred to;
  • thinks the person referred to lacks the ability to effectively do their job;
  • shuns or avoids the person referred to;
  • treats the person referred to as a figure of fun or an object of ridicule.

The important thing to note is that it does not matter how the statement makes the person referred to feel. What matters is the impression it leaves on the reader or listener.

A statement is not defamatory as a threshold matter unless its publication has caused or is likely to cause serious harm to the reputation of a claimant who is a natural person. When a claimant is a body that trades for profit, evidence of serious financial loss or its likelihood is needed.

Defamation has two opposing arguments. The claimant has the right to protect their reputation, under the Defamation Act 2013. Whilst the defendant has the right to freedom of expression, under Article 10 of the Human Rights Act 1998.

When an individual or organisation is sued for publishing a defamatory statement, there is several defences that may be available to them which are:

Truth:

The first and perhaps most obvious defence is that the statement is the truth. If the defendant proves the statement is true, it will apply no matter how damaging it is to the claimants’ reputation.  Minor inaccuracies will not prevent this defence applying if it is substantially true. In other words, every word does not literally need to be true if it is broadly accurate. (This defence was successfully used the The Sun in the recent Johnny Depp defamation case)

Honest opinion:

This defence was founded in the Defamation Act 2013 and supports the right to freedom of expression. Prior to the 2013 Act it was known as fair comment but has also been called honest comment. Section 3 of Act sets three conditions for this defence. Firstly, the statement complained of must be a statement of opinion. The next condition is that the ‘statement complained of indicated, whether in general or specific terms, the basis of the opinion.’ The final condition is that an ‘honest person’ could of held that opinion based on, any fact which existed at the time the statement was published or ‘anything asserted to be fact in a privileged statement published before the statement complained of.’ A privileged statement is either a publication on the matter of public interest, peer reviewed statement in a scientific or academic journal, reports of court proceedings protected by absolute privilege, or other reports protected by qualified privilege. The opinion needs to be a reasonable one to hold. If a judge or jury concluded that no one could reasonably hold that opinion then the defence will fail, even if the defendant did honestly hold the opinion.

The defence is defeated if the claimant can show that the defendant did not hold the opinion. However, this does not apply if the defendant was only the publisher and not the author. Unless the claimant can show that the defendant ‘knew or ought to have known that the author did not hold the opinion.’

This can be obvious if certain words are used. For example, if the statement says, ‘I think’, it is obviously an opinion. However, in cases when it is not obvious it can be a very grey area, as proving the mental state of the defendant based on the information they had at the time, presents challenges.

Absolute privilege:

This defence applies when freedom of expression is more important than protecting reputation. When absolute privilege applies it is impossible to sue even if the statement is defamatory. Absolute privilege applies in the following circumstances.

  • Any statement made in Parliament by a Parliament member or published in a report by either House. It also applies if the report is republished by another person.
  • A statement made by an officer of state to another officer of state in the course of their duty. Ministers and Secretaries of State are officers of state.
  • Statements made by one spouse to another.
  • Statements made during judicial proceedings by the judge, jury, lawyers, witnesses, or the parties.
  • Statements made by officials and other EU servants in the course of their duties.
  • Fair and accurate reports of public court proceedings. In some cases, reports will be delayed for a period to avoid influencing a jury in a pending case.

Absolute privilege covers the person and would not cover subsequent reports of the statement. The only exception to this is when it is fair and accurate reports of public court proceedings as it is in the public interest. Media outlets would not be able to accurately report proceedings if they could be held liable for repeating defamatory statements.

Qualified privilege:

This defence also applies in certain circumstances. It is when freedom of expression is important but not unrestricted as it is for absolute privilege. Qualified privilege is either qualified under statute or in common law. However, the defence will not apply if the statement is made with malice or if the person making the statement did not believe it to be true.

Qualified privilege under statute applies when a statement published is of public concern and it is in the public interest to publish. This includes fair and accurate reports of courts, proceeding of legislatures, government inquiries and international organisations held in public, anywhere in the world. Fair and accurate extracts or copies of reports published or authorised by any government, legislature, international organisation, or conference, worldwide. Another statutory qualified privilege is for academic and scientific writing to provide protection for open discussions on academic and scientific issues.

Cases have established several areas in which qualified privilege under common law applies. Bryanston Finance v De Vries (1975) demonstrated that qualified privilege applied when defamatory statements were made concerned with protecting business interests. Watt v Longsdon (1930) showed it could apply with communications between officers of a company. Croucher v Inglis (1889) asserted that information given to the police about a suspected crime is a right and duty.

Apology:

An apology is not a complete defence, but it can be used to reduce the damages payable. It will more likely reduce damages if it is offered quickly, especially if it was before the proceedings began. A full and prompt apology published in an equal manner to that of the defamatory statement can limit the damaged caused to the claimants’ reputation.

Offer of amends:

This procedure requires the defendant to make a written offer to publish an apology/correction and pay damages. The claimant can choose to accept or reject this offer. The defendant must make this offer before presenting any other defence. It cannot be done last minute because the original defence is failing. An offer of amends can save the costs of going to court.

At Lawdit we can assist you if you or your business is being damaged online by defamation or something similar so please feel free to phone us for a conversation.

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