The recent case of Johnny Depp v News Group Newspapers and now Rebecca Vardy and Coleen Rooney has made defamation front page news but what is it.
Defamation is an area of tort law which protects a person or company against damage towards reputation. It is committed when something is said or written that causes harm. The claimant can then sue for damages. Well known cases often involve celebrities and media outlets such as in 1997, when Nicole Kidman sued the Express on Sunday. It was reported that she told the builders, working at her property to face the wall, whenever she walked past. The Court of Appeal upheld her defamation claim and it was settled out of court. In defamation cases the courts must balance two competing rights. 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. Defamation cases are heard without a jury unless the court orders otherwise, as stated by Section 11 of the Defamation Act 2013.
There is no single definition of what defamatory is as most of the original law, prior to the 2013 act comes from case law. However, 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. The claimant does not have to prove that a particular person actually had any of the effects listed. It just needs to be proved that the statement could tend have that effect on an ordinary, reasonable reader or listener.
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.
An obvious example of a defamatory statement would be to make a false statement. However, there can be exceptions to this, such as falsely claiming that a person is an informant. This is because an ordinary, reasonable person would not think less of someone for reporting a criminal offence as shown in Byrne v Deane (1937).
A statement may not always seem directly defamatory but when taken into context with background factors about the claimant, it could then be considered as defamatory. This was demonstrated during Berkoff v Burchill (1996). The journalist Julie Burchill compared the actor Steven Berkoff to Frankenstein’s monster. She said Berkoff was ‘hideous looking’. These remarks would not usually be considered as defamatory but as the claimant made a living from acting, the words made him an object of ridicule.
Another example of context was shown in Bowman v MGN Ltd (2010). The Actor, Simon Bowman won £4,250 in damages after the Daily Mirror said on its website that he was former EastEnders actress, Hannah Waterman’s new man. The words alone would not be considered defamatory but as Bowman had been in a serious relationship with another person for twenty years, the words could imply that he was being unfaithful.
Section 1 of the Defamation Act 2013 states that ‘a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.’ This prevents claims being brought over trivial statements and it asserts that defamation protects against reputation, not injury to feelings. If a statement is clearly meant as a joke that no person would believe, a claim would not be possible. It also allows media outlets to avoid a claim by publishing a clear and prompt apology, as this can put right any damage made.
A defamatory statement must refer to the claimant as it is not usually possible for a group of people to sue, nor is it possible for a member of that group to sue. For example, a statement saying, ‘all British politicians are corrupt’ would not lead to a successful claim as it does not refer to a specific person. The exception to this is when a group of people is so small that it could refer to each and all of them.
Section 1 also states that with regards to a ‘body that trades for profit’, it is not ‘serious harm unless it has caused or is likely to cause the body serious financial loss’. However, there is two exceptions to this,
- The statement accuses the claimant of committing an imprisonable offence:
- The statement alleges that the claimant is unfit to do their profession, trade, business, or position.
During these two exceptions the claimant only needs to prove serious harm to their reputation.
It is vital to know that if a statement is proved to be “substantially true”, the claim for defamation will be unsuccessful, no matter how damaging it is to the persons reputation. This defence was successful for News Group Newspapers in the libel claim brought against them by Johnny Depp.
The recent celebrity defamation cases have brought this area of law to the front pages of the press. It shows how important it is to pause before you post. Never post in anger, sleep on it first to consider the possible implications on such a post. You should not unnecessarily risk having another bringing a claim against you or your business for alleged defamation. At Lawdit we can assist you with defamation whether you are alleging defamation, or another has accused you of defamation.
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