Defamation & malicious falsehoods Dispute Resolution What is defamation? Defamation occurs when a statement is published to a third party which serves to lower and damage the reputation of an individual, company or firm. Defamation can be in the form of libel or slander. Libel is the publication of defamatory words in permanent form, which ordinarily is through the written word, but also includes broadcast on television or radio and publication through images. Slander is the publication of defamatory words in transient form which ordinarily means oral publication. What is malicious falsehood? Malicious falsehoods are published statements which are false without necessarily being defamatory. In order to prove malicious falsehood, a claimant will need to prove that: • the words are false • the words were published maliciously • the words published have caused special damage or financial loss to the claimant. A common situation where malicious falsehood arises is in respect of trade disputes between rival businesses where adverse comparisons have been made regarding the quality of goods. Who can be sued? A publisher of a defamatory statement can include anyone who participated in the publication of a defamatory statement. This includes both primary publishers, who exercise direct editorial control over the published statements (such as authors, editors and publishing houses) and secondary publishers, who do not take an active editorial role but still make the defamatory comments available to third parties. What does a claimant need to prove? In order to prove defamation, a claimant will need to show that: • the words complained of are defamatory of them actually or by imputation • the words identify or refer to the claimant • the words have been published to a third party. What are the defences? A publisher may be entitled to rely on one of the following defences to defamation: Justification: What has been published is true and malice is irrelevant. Truth is a complete defence to defamation Fair comment: What has been published is an honest expression of opinion on a matter of public interest which is based upon true facts and has been made in good faith and without malice. Examples of publications which may be protected by fair comment include theatre or restaurant reviews. Contact: www.withyking.co.uk Dispute Resolution T: 0800 923 2076 Privilege: This defence recognises that there are occasions where it is in the public interest to permit greater freedom of speech. There are two types of privilege: • Absolute privilege: No action for libel or slander can succeed where absolute privilege applies, regardless of the dishonesty or motive of the speaker or writer. Examples of where the defence of absolute privilege will apply include statements made in the course of Parliamentary proceedings, judicial and quasijudicial proceedings, fair and accurate reports of Parliamentary and judicial proceedings published contemporaneously or statements of criminal behaviour made to the police. • Qualified privilege: Is a lesser protection which cannot be relied on if the statements were published with malice. Qualified privilege can attach to the following: • statements made in pursuance of a legal, moral or social duty, with a corresponding interest in receipt of such statement • statements made in the protection or furtherance of a private or public interest, with a corresponding interest in receipt of such statement • statements made in the protection of a common interest • fair and accurate reports of Parliamentary and judicial proceedings, whether or not published contemporaneously. Consent: If a claimant has consented to the publication of certain statements and there is clear evidence of that consent, they are not entitled to libel damages arising from the publication. Accord & satisfaction: If the claimant has agreed to accept an apology they may be prevented from suing for defamation. Innocent Disseminators Under English law there is a defence available which essentially protects ‘innocent disseminators’ of defamatory material over the internet. This defence can be relied on by Internet Service Providers (ISPs), web hosting companies and other intermediaries. In practice however, and following the case of Laurence Godfrey v Demon Internet Limited  4 All ER 342, in order to rely on this defence, the ISPs, web hosting companies and other intermediaries now have to remove allegedly defamatory material as soon as they are put on notice of their existence and even before investigations are carried out. Otherwise, they face a real risk of liability for defamation and they may not be able to rely on the ‘innocent disseminators’ defence. What are the remedies? A claimant may be entitled to an injunction to prevent publication, compensatory damages, an apology and an undertaking not to repeat the defamatory allegations. Limitation Period Proceedings for defamation need to be brought within 1 year from the date of publication. Pre-action Protocol for Defamation There is a specific Pre-Action Protocol for Defamation which sets out the steps that parties are required to take before starting proceedings for defamation. The purpose of the Pre-Action Protocol is to encourage parties to exchange information early on and to attempt to resolve the dispute without the need for litigation. Parties are expected to comply with the Pre-Action Protocol and there may be costs consequences if parties fail to do so. Contact: www.withyking.co.uk Dispute Resolution T: 0800 923 2076 The Pre-Action Protocol sets out what steps should be taken and what information should be exchanged between the parties. In summary, the steps are as follows: • letter of Claim – the claimant should send a detailed letter to the defendant setting out the words complained of and the key details of the claim. Ordinarily the claimant should allow the defendant 14 day to respond. • letter of Response – the defendant is to respond to the allegations set out in the Letter of Claim and to indicate what parts of the claim are accepted or rejected • Alternative Dispute Resolution (ADR) – the parties should consider whether ADR such as mediation, informal settlement discussions, arbitration or reference to the Press Complaints Commission is appropriate. If you have any questions or concerns about defamation, please contact any member of our Dispute Resolution team for a no obligation discussion. Contact: www.withyking.co.uk Dispute Resolution T: 0800 923 2076 Withy King is the trading name of Withy King LLP, a limited liability partnership registered in England and Wales with registered number OC361361. Withy King LLP is authorised and regulated by the Solicitors Regulation Authority. The term partner is used to refer to a member of the Withy King LLP or an employee or consultant with equivalent standing and qualification. A list of members is available at the registered office 5-6 Northumberland Buildings, Queen Square, Bath BA1 2JE. Information contained in this communication does not constitute legal advice. All statements of law are applicable to the laws of England and Wales only.