DEFAMATION GUIDE
FOR NGOs
Contents
1.
PURPOSE OF GUIDE .............................................................................................................. 1
2.
INTRODUCTION ..................................................................................................................... 1
3.
2.1
Definition...................................................................................................................... 1
2.2
The threat of defamation to NGOs................................................................................ 1
2.3
Current trends in defamation ........................................................................................ 2
2.4
Amendments ................................................................................................................. 2
OVERVIEW .............................................................................................................................. 2
3.1
3.2
3.3
4.
5.
6.
"Defamatory" statements about the claimant................................................................ 2
3.1.1
Who can be held responsible for the publication? ........................................... 3
3.1.2
Who can sue or be sued?.................................................................................. 3
Publication .................................................................................................................... 4
3.2.1
Libel................................................................................................................. 4
3.2.2
Slander ............................................................................................................. 4
Serious harm ................................................................................................................. 5
PROCEDURE............................................................................................................................ 5
4.1
Time limit on bringing a claim ..................................................................................... 5
4.2
Liability for multiple publications ................................................................................ 5
4.3
Place of claim and jurisdiction...................................................................................... 6
4.4
Death of parties............................................................................................................. 6
DEFENCES ............................................................................................................................... 6
5.1
Truth ............................................................................................................................. 6
5.2
Honest opinion.............................................................................................................. 7
5.3
Public interest ............................................................................................................... 7
5.4
Operators of websites.................................................................................................... 7
5.4.1
Identifying the person who posted the statement............................................. 7
5.4.2
Handling a notice of complaint........................................................................ 8
5.4.3
Defeating the defence ...................................................................................... 8
5.4.4
Repeat offending.............................................................................................. 8
5.5
Peer-reviewed statements in scientific or academic journals etc.................................. 8
5.6
Privilege ........................................................................................................................ 8
5.7
Secondary publisher...................................................................................................... 9
REMEDIES ............................................................................................................................... 9
6.1
Damages........................................................................................................................ 9
6.2
Injunction.................................................................................................................... 10
6.3
Removal of statement by third parties ........................................................................ 10
6.4
7.
8.
9.
10.
Statements in open court............................................................................................. 10
SETTLING THE CASE WITHOUT GOING TO TRIAL ...................................................... 10
7.1
Apology or reply......................................................................................................... 11
7.2
Offer of amends .......................................................................................................... 11
7.3
Summary disposal....................................................................................................... 11
RELATED ACTIONS ............................................................................................................. 11
8.1
Misuse of private information..................................................................................... 12
8.2
Malicious falsehood.................................................................................................... 12
8.3
Data protection............................................................................................................ 12
8.4
Negligent misstatement............................................................................................... 12
8.5
Harassment.................................................................................................................. 12
SELF-HELP............................................................................................................................. 13
9.1
Be aware of what counts as "published"..................................................................... 13
9.2
Check whether statements can be supported before publishing.................................. 13
9.3
Act quickly on any potential claim for defamation..................................................... 13
9.4
Internet message boards.............................................................................................. 13
9.5
Training and policies .................................................................................................. 14
9.6
Reporting to regulatory bodies.................................................................................... 14
9.7
Notifying people mentioned in public statements in advance .................................... 14
SITUATIONS INVOLVING NGOS....................................................................................... 14
10.1
Campaigning and public statements ........................................................................... 14
10.2
Multi-national and international activities .................................................................. 15
10.3
NGOs as parties to a defamation claim....................................................................... 15
11.
GLOSSARY ............................................................................................................................ 15
12.
OTHER USEFUL INFORMATION ....................................................................................... 16
1.
Purpose of guide
The purpose of this guide is to give non-governmental organisations (NGOs) an overview of
defamation under the law of England and Wales (referred to as English law) as it stands in
January 2014. It is intended to be of use to both lawyers and non-lawyers and has been
written accordingly. It does not cover the law of defamation in Scotland or Northern Ireland.
Please note that this is a general guide only. Please consult a solicitor for legal advice about
individual matters. Please also be aware that with an increasingly connected world and with
international organisations, similar situations may arise in other countries which will have
different legal systems.
2.
Introduction
2.1
Definition
Defamation is the name given to the branch of civil law concerned with protecting a person
from the effects of publication by a third party of untrue statements which serve to damage
that person's reputation. Individuals, companies and partnerships can be both the person
making the statement, or the person complaining of the statement.
2.2
The threat of defamation to NGOs
NGOs frequently undertake campaigning and lobbying which may involve making statements
on the activities and ethics of high-profile companies and politicians, who may be able to
raise a defamation claim against NGOs to defend their reputation. The UK defamation regime
has been criticised in the past for discouraging the making of such statements. Notably, the
United Nations Human Rights Committee in its 2008 report stated that the UK regime "served
to discourage critical media reporting on matters of serious public interest, adversely affecting
the ability of scholars and journalists to publish their work".
This perception of the UK's defamation regime as being more favourable to the interests of
those who claim they are the victims of defamation, rather than those who publish critical
statements on the grounds of public interest, has served to make organisations such as NGOs
more cautious in making such statements, for fear of being faced with the threat of a
defamation claim, with its attendant costs and damaging publicity. This cautiousness can
frustrate these organisations in the pursuit of their objectives.
No reported cases were discovered of NGOs being successfully sued for defamation in the
UK. One case from France in 2013 in fact resulted in the NGO involved, the Catholic
Committee Against Hunger (CCFD), successfully defending a claim for damage to reputation
raised by Equatorial Guinea’s President Teodoro Obiang Nguema. Nonetheless, due to
several high-profile cases against newspapers, NGOs remain cautious in exposing themselves
to the risk of claims of reputational damage.
This guide therefore is intended to provide NGOs with an understanding of how to manage
this risk of defamation, to enable them to pursue their organisational goals more effectively.
The guide highlights the recent changes in the law, which seek to "overhaul the libel laws in
England and Wales and bring them into the 21st century, creating a more balanced and fair
law" including "protection for those who are publishing material which they reasonably
believe is in the public interest". This guide is also intended to inform NGOs how they may
seek to defend their own reputation, should it be subject to challenge.
1
2.3
Current trends in defamation
With increasing use of social media such as posting on websites, Facebook and Twitter,
which make it easier for people to commit defamation due to greater access to methods of
publication, concerns about the exposure to defamation actions have increased. The high
profile case of the late Lord MacAlpine in 2013 illustrates these concerns. The matter resulted
in substantial payments made by the BBC and ITV regarding allegations made on television
programmes, a partial amnesty by Lord MacAlpine for Twitter users with small followings
who had re-tweeted Sally Bercow's tweet following the programmes, and a court case which
found against Ms Bercow for the tweet in October 2013.
2.4
Amendments
The law of defamation was substantially amended by the Defamation Act 2013, which fully
came into force on 1 January 2014. The aim of the government in reforming this law was to
introduce a fairer and more balanced law in this area. In many areas, the Act codified and
simplified the previous law. The previous law in these areas will still serve as a guide in
interpreting the new law, though the courts will be free to depart from the old law in certain
circumstances.
Criticism remains regarding the costs that can be incurred in defamation actions. Work to
manage the costs of defamation cases is expected to be handled by the Civil Procedure Rules
Committee at a future date.
The new defamation law will apply to all claims regarding statements made after the Act
came into force. Claims regarding statements made before this date will be dealt with under
the old defamation laws. However, given the short period of one year in which a defamation
claim must be raised, by the end of 2014 the old laws will no longer be applicable to any
claims not already issued (see section 4.1). For brevity, claims resulting from statements after
1 January 2014 are referred to as post-2014 claims, and claims resulting from statements
before this date are referred to as pre-2014 claims.
3.
Overview
The basic requirements of a defamation claim are:
1. A defamatory statement made about the claimant;
2. Which is published; and
3. Which caused serious harm.
These elements are covered below.
Importantly, the claimant does not need to prove that the statement was false to establish a
defamation action, although if the defendant can prove that the statement was true, this will
defeat the claim.
3.1
"Defamatory" statements about the claimant
A defamatory statement can be defined as one which tends to make reasonable people think
worse of the claimant. A "statement" is defined very widely as "words, pictures, visual
images, gestures or any other method of signifying meaning".
Statements are normally given their "natural and ordinary meaning", that is, what a reasonable
and ordinary observer would think was meant. Additionally, statements may be given an
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"innuendo" meaning, where a statement may have a different meaning when special
knowledge is taken into account. Thus, a politician may be accused of being unduly
influenced by a group of companies by directly stating this, or by implying the influence by
stating that they have been seen meeting regularly with a list of people who are prominent
figures from those companies.
The meaning the person intended to convey in making the statement is irrelevant in
establishing whether it is defamatory (apart from where "malice" is relevant - see below).
However, the fact that the person did not intend to communicate such a meaning may be
relevant towards reducing the sanctions imposed by the court.
Actionable defamatory statements should also should be distinguished from "vulgar abuse",
said in the heat of the moment and not likely to be taken seriously by those to whom the
statement is made. Vulgar abuse is generally considered to apply to oral statements, though
can be claimed in relation to publications, such as satirical works.
3.1.1
Who can be held responsible for the publication?
Every person who participates in the publication of a statement may be considered
responsible for defamation. Thus, for a statement in a newspaper, any or all of the original
author, editor, newspaper owner, printer and ultimate seller may be liable. Similarly, on the
internet, the author, website host and internet service provider may all be liable. Any
settlements by other parties regarding the same publication are taken into account by courts to
prevent the claimant recovering more than once for the same harm.
3.1.2
Who can sue or be sued?
The claimant must be capable of being identified, either directly or indirectly, as the person to
whom the statement applies, but does not need to be specifically named. In addition to
individuals, the following categories are considered:
Incorporated bodies:
An incorporated legal body such as a company, NGO or charity can
sue or be sued in its own name. Additionally, individuals in such a
body can sue regarding statements made about the body itself where
it indirectly applies to such individuals, for example a statement that
an organisation is being run for fraudulent purposes may be
considered indirectly to defame those who run it, such as directors.
Employers:
An employer may be held liable for the statements of their
employees if made in the execution of their duties. Equally, a
company or incorporated body such as an NGO may be held liable
for the statements of their representatives (including volunteers and
unpaid staff) if made in the execution of their duties.
Governmental bodies:
Generally, a governmental body cannot sue for defamation on the
public policy grounds that the ability to do so would restrict freedom
of expression. This restriction also applies to political parties, local
authorities and trading corporations operating for governmental
bodies. There is however no bar to representatives or officers of
such bodies suing for defamation if the criticism can be seen to
attach to them as individuals, even if they are not explicitly named.
Additionally, there is no bar on Members of Parliament suing for
defamation against them personally.
3
Unincorporated groups: Unincorporated associations such as pressure groups or social clubs
cannot sue or be sued in their own name, but individuals within that
association may sue or be sued if they are sufficiently identified
within the group. For example, "all pressure groups are
untrustworthy" would be too vague for any one person to be
defamed, though a similar allegation against a particular group may
allow senior members of that group to sue in their own name.
Likewise, senior members may be considered liable for statements
released by such a group.
3.2
Publication
Publication can be defined for defamation purposes as communication of the defamatory
statement to at least one person other than the claimant. This is therefore a very low threshold
to meet, though claims where little damage to reputation has been caused because of the
limited distribution of the statement may be dismissed by the courts as an abuse of process.
The breadth of distribution does however make proof of publication easier to obtain and can
have a significant impact on any sanctions which may be ordered.
Publication occurs at the location where the statement is seen or heard by the recipient, not
where it is made. Thus, for a statement written in England and Wales but published in the
USA, the law of England and Wales will not apply. Internet pages are published where they
are accessed and read, leading to potential publication in any country where such pages can be
accessed.
Where a person is unaware of the statement, they generally will not be held liable for
publishing it. However, they may be liable if they become aware of the statement and then
fail to remove it, for example from a notice board or internet site (see section 5.4).
The law of defamation is subdivided according to the mode of publication into libel
(permanent) and slander (temporary) which are covered below.
3.2.1
Libel
Libel is the publication of defamatory statements in permanent form, such as in the media and
on the internet. The following are examples:
1.
2.
3.
4.
5.
Radio and television broadcasts;
Theatrical performances;
Emails, message boards, websites and other material posted on the internet;
Photographs; and
Books, newspapers and other printed formats.
For libel, there is no need for the claimant to prove they have suffered any special damage
due to the publication, just that it occurred.
3.2.2
Slander
Slander is the publication of defamatory statements in temporary form, generally oral
communication. Examples are words spoken at a public event or in a workplace. However, if
the statement is broadcast, such as on live television, the publication is treated as libel.
For slander, the claimant must prove they have suffered "material loss" (generally financial
loss) as a result of the statement. Injury to feelings or psychological and physical illness
4
following the act is not sufficient. However, the claimant does not need to show loss where
the statement refers to one of the following:
1. Matters likely to damage the claimant's reputation in relation to his office, professional
trade or business; and
2. Guilt of a criminal offence.
NOTE: For pre-2014 claims, the following categories also did not require proof of financial
loss:
3. That a woman was unchaste; and
4. That the claimant was suffering from certain contagious diseases.
3.3
Serious harm
For post-2014 claims, a claimant must establish whether the statement has caused or is likely
to cause serious harm to the claimant's reputation. This is defined as meaning "serious
financial loss" for businesses (defined as a body that "trades for profit").
For pre-2014 claims, the test is lower, in that the claimant must establish that there is or could
be a substantial effect on the attitude of people towards the claimant, which should prevent
trivial cases proceeding in the courts.
4.
Procedure
The following sections cover important procedural elements of raising a defamation claim.
4.1
Time limit on bringing a claim
The time limit for a claimant bringing a claim for defamation against a defendant (called the
"limitation period") is within one year of the statement being published (see section 3.2),
regardless of when the claimant was first made aware of the publication. The courts do have
discretion to extend this period if necessary, but seldom grant such an extension.
Action should be taken as soon as possible after the alleged defamatory statement, as the
defendant may ask for an explanation for any delay. The court may then draw adverse
inferences which may weaken the claimant's case, for example that the claimant's reputation
could not have been as damaged as they claim, otherwise they would have responded more
quickly once the statement had been made.
NOTE: the time limit for bringing claims for Scotland is within three years of the
communication coming to the aggrieved party's attention. See section 4.3 for more details on
foreign claims.
4.2
Liability for multiple publications
A claim can be raised for each publication of a statement, each subject to its own limitation
period. One statement can therefore lead to many claims, particularly for social media, as
demonstrated in the Lord MacAlpine case, where each person who re-posted the allegation on
Twitter was potentially subject to a claim.
For post-2014 claims, once a defendant publishes a statement to the public or a section of the
public, the one-year limitation period for that statement then applies to all subsequent
publications of the same statement by the same publisher. This is to prevent the limitation
5
period being extended, potentially indefinitely, in situations such as people accessing
webpages, each access being treated as a "publication" with its own limitation period.
However, a separate limitation period may start where the same publisher publishes the
statement in a manner that is materially different from the first publication (for example
where a publication is initially published on a relatively obscure part of website and is then
displayed on the home page). A separate limitation period will apply for publications against
a different publisher.
4.3
Place of claim and jurisdiction
By its nature, a defamatory statement may be published in more than one country. Each
statement may give rise to a separate claim under the appropriate national law.
A claimant has the choice to raise an action either where the defendant is "domiciled" (see
Glossary, section 11) or where the defamatory statement was published. Thus, where the
claimant is domiciled in England, the publication was made in Scotland and the defendant is
domiciled in the USA, the claimant would not be free under English law to raise an action in
England and Wales.
A single claim for publication in countries in addition to England and Wales may be made,
provided that the claimant can also establish that a potential claim exists in those other
countries. The defamation laws in Scotland and Northern Ireland are similar to those of
England and Wales, but are treated as foreign jurisdictions for defamation purposes.
For post-2014 claims, where the defendant is not domiciled in the UK or a state within the
European Union or European Free Trade Association, the claimant must satisfy the court that
of all the places the statement complained of has been published, England and Wales is the
most appropriate place to do so. This is to prevent so-called "libel tourism" whereby
claimants may choose to raise their claims for defamation in England and Wales because of
the perception that its laws on defamation are comparatively more favourable to claimants.
For example, for a statement in a newspaper which sold a million copies in the USA but a
thousand in the UK, it may be more appropriate to raise the action in the USA and so the UK
courts may not agree to hear the case.
For pre-2014 claims regarding such defendants, the claimant may be required to show that
England and Wales is the most appropriate jurisdiction, but the courts have been lenient in
permitting such action.
4.4
Death of parties
A defamation claim cannot be raised following the death or dissolution of the claimant or
defendant. Any proceedings currently underway are terminated, with each side paying their
own legal costs incurred regardless of the merits of the claim.
5.
Defences
There are a number of defences available to a defendant in a defamation case, which are
detailed below.
5.1
Truth
It is a complete defence if the defendant can establish that the publication was of facts that
can be demonstrated to be substantially true. However, this requires evidence, which may be
difficult to obtain.
6
NOTE: The defence of Truth replaced that of "Justification", which still applies to pre-2014
claims and is substantially the same.
5.2
Honest opinion
A defendant must establish that the publication complained of was an expression of opinion,
not fact. Secondly, a defendant must detail the basis of this opinion. Finally, the defendant
must show that the opinion was one which an honest person could have held, based either on
facts which existed at the publication, or asserted facts in privileged statements published
before the publication (see section 5.6).
NOTE: The defence of Honest Opinion replaced that of "Fair Comment", which still applies
to pre-2014 claims. The main difference is that the old defence also required the
opinion to be on a matter of public interest.
5.3
Public interest
The defendant must establish that the publication complained of was on a matter of public
interest, and that the defendant reasonably believed that the publication was in the public
interest. Allowance may be given for editorial judgment and for failure of the defendant to
verify the facts where the statement forms part of a neutral report of a dispute involving the
claimant.
NOTE: The defence of Public Interest replaced the Reynold's defence, which still applies to
pre-2014 claims and is substantially the same.
5.4
Operators of websites
For post-2014 claims, an operator of a website can defend itself against a defamation claim if
it can establish that it was a third party, not the operator, who posted the defamatory statement
on its website. This procedure was brought in to remove the pressure on website operators to
automatically remove material on receipt of a complaint to prevent it being sued. Website
operators should therefore be able to leave such statements on display while it follows the
process below without fear of being sued. The process is not mandatory: the operator can
choose to follow it or to rely on other defences.
The process is outlined below, though guidance from the Ministry of Justice is expected to be
published.
For pre-2014 claims, the defence of Secondary Publisher may be applicable (see section 5.7).
5.4.1
Identifying the person who posted the statement
A person is considered sufficiently identified if the claimant has sufficient information to
bring a claim against that person. This generally means the claimant would need the person's
name and an address on which court documents could be served.
Where the person is identified, the website operator does not need to follow the procedure to
be able to use the defence, as it will be open to the claimant to take direct action against the
poster. However, operators may be ordered by the court to remove statements found to be
defamatory (see section 6.3).
7
5.4.2
Handling a notice of complaint
If a claimant cannot identify the poster, the claimant must send a notice of complaint to the
operator.
Within 48 hours of receiving the notice of complaint, the operator must notify the poster of
the complaint and request a response within 5 days. If the operator cannot contact the poster,
or if no response is received, the operator must remove the post. The poster may either
consent or object to the removal, but can only object if they also provide the operator with
contact details. If the poster provides contact details to the operator which are obviously false,
the operator should remove the statement.
Details of the claimant and poster must be withheld from the other unless they consent to the
release of their information. The operator can however be compelled by court order to release
the details of either party to the other at a later date.
5.4.3
Defeating the defence
The claimant can defeat this defence if they can show that:
1. It was not possible for the claimant to identify the person who posted the statement (the
"poster");
2. they gave the operator a notice of complaint; and
3. the operator failed to respond appropriately.
This defence can also be defeated if the claimant can show that the operator acted with malice
(such as encouraging such defamatory postings). This defence cannot however be defeated
simply because the operator moderates the statements posted on the website (as the majority
of operators do).
5.4.4
Repeat offending
This applies if an operator has received two or more notices of complaint from the
complainant regarding statements with the same or substantially the same content on the same
site, all of which resulted in the statement being removed. On receipt of a further notice, the
operator must not notify the poster but must remove that statement within 48 hours.
5.5
Peer-reviewed statements in scientific or academic journals etc.
This defence protects statements by scientists and academics published in peer-reviewed
journals, provided the statement relates to a scientific or academic matter, was independently
reviewed and was not motivated by malice.
NOTE: this defence only applies to post-2014 claims. For pre-2014 claims, the Reynold's
defence may be applicable (see section 5.3).
5.6
Privilege
This category of defences is based on the public policy ground that it is for the public good to
allow certain freedoms of speech even if they damage a person's reputation with a false
allegation.
8
Traditionally, there are two types of privilege which can apply:
Absolute: There are certain circumstances where a person is completely protected from
allegations of defamation. These include statements made in the course of
parliamentary or judicial proceedings, or contemporaneous reports of the same.
Qualified: This privilege arises in several circumstances, such as where the person who makes
a fair and accurate statement has a legal, social or moral interest or duty to make it,
and the person receiving the statement has a corresponding duty or interest to
receive it. Examples are reporting incidents to the police, social services or media,
writing references, and statements made at public meetings or press conferences.
This form of privilege may be defeated if the claimant establishes the defendant
was more motivated by the harm it would cause the victim (referred to as malice),
such as making a statement to the media rather than to the appropriate authority.
Additionally, there may be circumstances where the defendant is required to
publish a reasonable statement from the claimant before being able to rely on
qualified privilege.
NOTE: the categories of protection for both absolute and qualified privilege were extended
for post-2014 claims such as the courts, public meetings and press conferences
anywhere in the world. For pre-2014 claims, protection generally only covers courts
in the UK and the European Court of Justice, and public meetings and press
conferences in the European Union.
Additionally, the following post-2014 defences are also considered part of privilege:
4.
5.
5.7
Publication on a matter of public interest (see section 5.3); and
Peer-reviewed statements in scientific or academic journals (see section 5.4).
Secondary publisher
For post-2014 claims, once the defendant has established that they are not the primary
publisher of the statement in question, the court can no longer deal with the claim unless the
claimant can establish that it is not reasonably practicable to bring an action against the
primary publisher (for example, if it is not possible to trace or identify them). However, the
court may order the removal of such a statement (see section 6.3).
If the claimant can establish that it is not reasonably practicable to bring an action against the
primary publisher, or for pre-2014 claims, the defendant has a defence by showing that, in
addition to not being the primary publisher, they took reasonable care regarding its
publication and did not know or have reason to believe that they had caused or contributed to
the publication of a defamatory statement.
6.
Remedies
There are a number of remedies that a court can provide if a person has been found to have
published a defamatory statement.
6.1
Damages
There are several types of damages which are available, any or all of which may be awarded:
General:
This is the basic type of damages in defamation claims, and compensates the
claimant for injury to reputation and feelings, as well as vindicating the
9
claimant's good name. Damages for this type under the traditional jury trial
were very high, however with trials now being conducted by judges by default
for post-2014 claims, this measure of damages is expected to become lower
than those previously awarded by juries, with a perceived maximum of
£200,000.
6.2
Special:
This type compensates the claimant for specific loss that the claimant has
suffered as a consequence of the defamation and is normally financial. The
claimant must make clear the basis on which special damage has been
calculated.
Exemplary:
This type is awarded to punish the defendant for particularly bad conduct,
where the defendant has deliberately or recklessly defamed the claimant with a
view to profit, or where the defendant is a government servant and has acted
oppressively, arbitrarily or unconstitutionally. These must be specifically
claimed by the claimant.
Injunction
The court can order the defendant to do or refrain from doing something. Typically, this is not
to publish further the same or similar statements about the claimant. It may be appropriate to
apply for an injunction preventing further publication of potentially defamatory statements
while the case is being decided. However, if the defendant intends to use the defence of Truth,
such an injunction cannot be granted unless the claimant shows the defendant is acting in bad
faith or that the defence will ultimately fail.
The court may unusually order a party to issue an apology (as ordered against Sally Bercow
to Lord MacAlpine should she ever re-activate her Twitter account).
6.3
Removal of statement by third parties
For post-2014 claims, a court can order the removal of a defamatory statement from a website
or prevent a person who is not the primary publisher of the statement from selling, exhibiting
or distributing material containing the statement. These powers are in addition to the court's
power to grant injunctions against the primary publisher of the original statement (see section
6.2).
6.4
Statements in open court
A court may give permission for a statement to be made by the claimant, defendant or jointly,
to be read in court with the aim of vindicating the claimant's reputation. Such statements are
absolutely privileged and cannot therefore be the subject of any further defamation actions
(see section 5.6). These can be of great value to claimants in restoring their reputation.
For post-2014 claims, a court may order the defendant to publish a summary of the judgment
in all defamation proceedings. For pre-2014 claims, a court may only order the defendant to
publish such a summary after deciding a summary disposal of the case (see section 7.3).
7.
Settling the case without going to trial
In addition to the normal methods of settling a dispute without a trial (such as negotiating an
agreement or mediation), the following additional options are available for defamation
claims:
10
7.1
Apology or reply
In many situations of defamation, a quickly delivered retraction and apology is what the
injured party is looking for, rather than a full court case with all the uncertainties and expense
that entails.
An additional motivation to accept an apology rather than proceeding to a full claim is that a
full claim can result in greater publicity for the statement, as the court documents and
proceedings are public and so can cause additional reputational damage to both claimant and
defendant.
If a claimant accepts a full and unreserved apology from the defendant, they cannot then sue
them, unless the claimant has specifically reserved this right. This is separate from the more
formalised offer to make amends covered below. Additionally, claimants often look for an
apology by way of statement in open court (see section 6.4).
Alternatively, a defendant may give the claimant the opportunity to publish a reply to the
statement in a suitably prominent location.
NOTE: it is typical for claimants to ask for apologies or replies to be given the same
prominence as the original statement. This is unlikely to be given for very high profile cases
such as front-page stories, the defendants preferring to pay higher damages. This can be the
subject of negotiation between the parties.
7.2
Offer of amends
This is an offer to pay costs and damages (as assessed by a judge), with an apology. The offer
must be in writing, agreed with the claimant and made before service of the defence. If
accepted and complied with, the offer ends the claim.
If refused, the fact that an offer was made is a defence in the full proceedings and may serve
to reduce any eventual damages. However, if the original statement was made maliciously,
such an offer does not give the defendant these protections.
7.3
Summary disposal
Either party may apply for the court, after service of the particulars of claim, to consider
whether there is any prospect of success of a defamation case. The court may decide there is
no prospect of success, because there is no defamatory meaning in the statement complained
of, and so may strike out the case, or may decide the defendant has no reasonable defence to
the claim and award judgment to the claimant.
The court may also order a defendant to consider making an offer of amends (see section 7.2)
or order the defendant to publish a summary of its judgment (see section 6.4).
8.
Related actions
There are a number of related actions which may arise regarding publication of information.
Unless otherwise stated, the limitation period is six years from when the statement was
published.
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8.1
Misuse of private information
This action is often coupled with defamation actions and applies to statements which are true,
but which are either obviously private or would give substantial offence to a person of
ordinary sensibilities in the position of that individual if made public. An individual (and to a
lesser extent, a business) has a reasonable expectation of privacy regarding information about
them. To be protected, the claimant must establish they have a reasonable expectation of
privacy and that their right to privacy outweighs the public interest in that information being
published.
This law has been used in very high profile cases such as the Max Mosley case regarding his
sexual practices with prostitutes, Michael Douglas and Catherine Zeta Jones regarding
photographs of their wedding, and Naomi Campbell regarding her attendance at a drug
addicts treatment centre.
8.2
Malicious falsehood
This action covers statements which are false but not defamatory, were published maliciously
and to produce damage, and caused such damage. It is primarily concerned with protecting
property rights and is commonly used in trade disputes about statements made about the
quality of rival goods. Unlike defamation, a claim may be raised following the death of either
party.
This claim has a limitation period of one year.
8.3
Data protection
The claimant, if they are an individual, may claim that the defendant is in control of personal
data about the claimant and is therefore under a duty to comply with data protection laws,
most importantly that data must be processed fairly and lawfully. The claimant has a right to
request that the Information Commissioner carry out an assessment of whether the defendant
has complied with the data protection laws. The Commissioner may serve enforcement
notices on the defendant and may impose a fine of up to £500,000. However, they cannot
award compensation to the claimant.
The claimant may apply to the courts for compensation for breach of data protection, but only
for provable loss sustained by the claimant, not the general damages awarded for defamation.
8.4
Negligent misstatement
An action for negligence may be available if loss has occurred but a defamation claim cannot
be substantiated, for example where an employment reference is negligently prepared but
without any evidence of malice (thus otherwise covered under qualified privilege, see section
5.6).
8.5
Harassment
The Protection from Harassment Act 1997 defines harassment as where a person's behaviour
is such that a reasonable person in the possession of the information of the person would think
the conduct amounted to harassment. It provides for both a criminal offence punishable by up
to six months' imprisonment and/or a fine, and allows for civil remedies such as compensation
or injunctions. There is no requirement that any allegations are false. This could potentially
apply where a person effects a sustained campaign of vulgar abuse, for example on an internet
message board.
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The criminal remedy has a limitation period of six months from the last act complained of.
9.
Self-help
The following pointers are designed to improve your organisation's handling of defamation
claims.
9.1
Be aware of what counts as "published"
Be aware that an increasingly wide variety of formats count as being "published" in
permanent form. Be particularly wary of electronic formats such as emails, message-boards,
Facebook pages and Twitter feeds, all of which count as "permanent" and by which
statements can be quickly be made. Advise your staff to be cautious in using such social
media and in any printed material they produce.
9.2
Check whether statements can be supported before publishing
Ensure that you can support any potentially contentious statement with evidence of its truth
and/or of underlying duty or interest to publish before publishing it. This exercise also ensures
that any statements are suitably drafted and do not go beyond what can reasonably be
supported (see in particular the defences of Truth, Honest Opinion and Public Interest in
sections 5.1, 5.2 and 5.3 above).
9.3
Act quickly on any potential claim for defamation
Act quickly if either you believe you have made a statement which may be treated as
defamatory, or if you believe someone has made a defamatory statement about you. Acting
quickly enables you to deal with a situation before it escalates into something more serious,
will help show the courts that you acted appropriately should the matter end up becoming a
full claim, and will prevent any adverse inferences being drawn for delay if you are the
claimant (see Time limit on bringing a claim, section 4.1 above and Settling the case without
going to trial, section 7 above).
It is advisable to consult a legal representative as soon as possible, to ensure that you are
correctly advised of your legal position.
If you believe you have made a statement which may be treated as defamatory, decide how
you want to deal with the situation: do you want to retract the statement and issue an apology
or do you believe you have the evidence to support the statement? (see section 9.2)
If you believe a statement has been made about you which you regard as defamatory, again
decide how you wish to proceed: would a simple retraction and public apology be all that is
required to remedy the situation, or do you have grounds for claiming compensation and legal
costs from the maker of the statement (for example your business interests have been
affected)? (see Apology or reply, section 7.1 and Damages, section 6.1)
9.4
Internet message boards
If someone has posted a statement which may be treated as defamatory on an internet
message board controlled by you, you should be protected from defamation claims provided
you follow the correct procedure if someone issues a notice of complaint. To reduce the
chances of such statements being made in the first place, you should prominently place
warnings about appropriate content. Additionally, to avoid the inconvenience and possible
13
adverse publicity of having to deal with such notices, to the extent it is practical, consider
moderating message boards for potentially defamatory content.
If you have been the subject of defamatory statements on such a message board, you should
file a notice of complaint in the correct format with the website operator as soon as you
become aware of them.
For further details on the law regarding operators of websites, see section 5.4 above.
9.5
Training and policies
Provide the appropriate training on defamation for those who are public-facing, such as those
who issue public statements and documentation or who give interviews.
Coordinate policies on how to reduce the risk of being exposed to the threat of defamation
claims and how to respond to both threats of action and of potential defamation against you,
including clear chains of communication to management.
9.6
Reporting to regulatory bodies
It is advisable to report allegedly defamatory statements to the Press Complaints Commission
(PCC) for print or online journalism or to the Office of Communications (Ofcom) for radio
and TV coverage. Ofcom has the power to fine and revoke licences for breaches of the
Broadcasting Code. The PCC has no legal power to order compensation or other remedies,
though the media generally seek to comply with its rulings.
Press regulation is due to be augmented by the Recognition Panel, established by Royal
Charter, though not until 2015 at the earliest.
Additionally, report misuse of personal data to the Information Commissioner's Office.
9.7
Notifying people mentioned in public statements in advance
Consider notifying people who are mentioned in public statements of the content of the
statements in advance, as much as is possible, to give them the opportunity to correct any
inaccuracies and voice any concerns before publication (provided only the other party is
notified and no third party, no publication will have been deemed to take place). Caution
should be adopted when doing so, to ensure that any parts of a statement which you wish to
keep secret are suitably redacted.
10.
Situations involving NGOs
The following situations regarding NGOs are of particular relevance regarding defamation:
10.1
Campaigning and public statements
An NGO may be involved in campaigning activities and in the making of public statements,
for example, highlighting deficiencies in current practice or policy by governments, ministers,
companies, political parties or other organisations.
Caution should always be advised when making any public statements, particularly by
considering (in advance if possible):
1. What medium will be used to communicate such statements (see section 3.2)
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2. That any statements are supported by a relevant defence such as Truth or Public Interest
(see sections 5.1, 5.2 and 5.3)
3. Who may be directly or indirectly implicated within the statement, and whether these
bodies are able to sue for defamation (see section 3.1.1)
Where a statement has been made that may be taken to be defamatory, consider at the earliest
opportunity what your response will be (see sections 4.4 and section 7).
10.2
Multi-national and international activities
NGOs may be involved in activities in more than one country. By its nature, a defamatory
statement may be published in more than one country which may give rise to a claim under
each country's law (see section 4.3). NGOs should therefore understand the applicable law on
defamation within each of the countries in which they operate.
10.3
NGOs as parties to a defamation claim
NGOs as incorporated bodies may be sued for defamation according to the principles of
vicarious liability (see section 3.1.1). However, they may not be able to raise an action for
defamation if their connection to government is sufficient to bring it within the public policy
that governmentally connected bodies should be open to uninhibited public criticism and
therefore not able to pursue a defamation claim. This will depend on the degree of control
exercised over it by government, and what government functions the NGO performs.
11.
Glossary
Term
Definition
Defamation
The branch of law concerned with protecting a person's
reputation from the effects of publication by a third party of
untrue statements which serve to damage that person's
reputation.
Domicile
Where a person is resident and has a substantial connection. An
incorporated body's domicile is determined by where it is
incorporated, managed and controlled from.
Libel
The publication of defamatory statements in permanent form.
Includes publication on the internet and media broadcasts. See
section 3.2.1 for more details.
Limitation period
The length of time the claimant has to register a claim with the
courts. In the defamation context, this is the time from the
publication of the statement. See section 4.1 for more details.
Malice
The defendant was driven by an improper dominant motive,
basically any motive other than discharging a legal, moral or
social interest or duty. This is generally established by showing
that the defendant knew or was reckless to the fact that the
statement complained of was false at the time of making the
statement. Malice is difficult to prove in court.
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Term
Definition
Person
Includes individuals, companies and any body with legal
personality. Non-governmental organisations may have legal
personality. Partnerships can sue or be sued in their own name
despite not having legal personality. Generally, unincorporated
groups cannot sue or be sued for defamation. See section 3.1.2
for more details.
Privilege
A group of defences protecting the maker of a statement from a
defamation action regardless of the truth of the statement, on
public policy grounds. See section 5.6 for more details.
Publication
Communication of the defamatory statement to at least one
person other than the claimant. See section 3.2 for more details.
Slander
The publication of defamatory statements in temporary form.
Generally oral statements. See section 3.2.2 for more details.
Statement
Defined as "words, pictures, visual images, gestures or any other
method of signifying meaning". See section 3.1 for more details.
12.
Other useful information
The following legislation forms the main statutory basis of the law regarding defamation:




Defamation Act 1952
Defamation Act 1996
Defamation Act 2013
The Defamation (Operators of Websites) Regulations 2013
These are available at www.legislation.gov.uk, along with the Explanatory Notes which
explain how the legislation is designed to operate.
The following elements of the Civil Procedure Rules are particularly relevant to defamation
claims:


PART 53 and Practice Direction 53 of the Civil Procedure Rules, both titled
"Defamation Claims"
Pre-action Protocol for Defamation
These are available at www.justice.gov.uk/courts/procedure-rules/civil
The following links are provided to relevant regulatory bodies:



Press Complaints Commission: www.pcc.org.uk
Office of Communications (Ofcom): www.ofcom.org.uk
Information Commissioner's Office: ico.org.uk
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