Find out the difference between ‘libel’ and ‘slander’
When is something defamatory?
What is the difference between 'libel' and 'slander'?
Who can sue for defamation?
Who can be sued for defamation?
What is 'malicious falsehood'?
What defences are there to a defamation action?
What are the remedies for defamation?
When is something defamatory?
Material is defamatory if it lowers the standing, or damages the reputation of the aggrieved person in the estimation of right-thinking people generally. Therefore, an advertisement which makes derogatory statements about an individual or company may give rise to a defamation action.
What is the difference between 'libel' and 'slander'?
Defamation refers to both libel and slander. Libel is usually written or broadcast (in other words, the defamatory statement is in some permanent form); slander is usually verbal. Libel will usually apply to advertisements.
Who can sue for defamation?
An individual, partnership or company can sue for defamation. A person or entity outside the UK can bring an action for defamation, but only if they can prove that they have a reputation within the UK and the material in question has been published here.
Local authorities, trade unions, most other unincorporated associations, political parties and central and local government bodies cannot sue for defamation, although individual officers and members can, if they can be identified with sufficient certainty.
A defamation action can only be brought if the defamatory words have been published to someone other than the person bringing the action.
Who can be sued for defamation?
Potentially, anyone participating in the publication of the defamatory material is liable; this includes the advertiser, advertising agency and broadcaster. However, the defence of "innocent dissemination" may be relied upon by those who do not have primary responsibility for its publication. The defence is not available where the person knew that his act involved or contributed to a defamatory publication.
What is 'malicious falsehood'?
An action for malicious falsehood (or 'injurious falsehood' where it relates to companies) is an alternative to defamation proceedings. For a claim to succeed, the claimant must show that an untrue statement has been made spitefully, dishonestly or recklessly, and it is or is likely to cause financial loss. It is not necessary to prove that the words are defamatory; but it is necessary to show that the words were false, the defendant has acted maliciously and the words are likely to cause financial loss. Legal aid is available for a malicious falsehood action, but not a defamation action.
What defences are there to a defamation action?
There are a number of defences to a defamation action. These include that the statement is true (known as the 'justification' defence); that the statement was innocently made; that the claimant consented to the statement being made; that the statement is fair comment on a matter of public interest (unless the maker was motivated by malice); or that the statement is protected by "qualified privilege" (again, unless the maker was motivated by malice). An example of the "qualified privilege" defence is where a statement is made by a person in the course of performing a duty.
What are the remedies for defamation?
Provided none of the defences apply, the person defamed will be entitled to damages and an injunction. The amount of damages will usually be decided by the jury, although the judge may give some guidance on the amount that should be awarded. It is very difficult to obtain an interlocutory (i.e. intermediate) injunction to stop the broadcast of an advertisement containing defamatory material prior to trial.
