What the claimant must prove
In order to bring a defamation claim the person bringing the claim ("the claimant") must prove that the person against whom the claim is brought ("the defendant") has published defamatory material about him or her.
Defamatory allegation
A defamatory allegation is one that tends to make right-thinking people think the worse of the claimant. In addition, allegations that would lead people to avoid the claimant or expose the claimant to ridicule may be defamatory even if they involve no moral blame.
Publication
Publication means communicating the allegation to another person or persons. It could be one person, as in the case of a letter, or millions, as in the case of a national newspaper. There is no restriction on the medium in which the allegation is published. It could be published in writing, electronically (e.g. the internet) or, in one instance, by putting a waxwork of the claimant in the Chamber of Horrors.
Reference to the claimant
Generally the claimant will be named and the issue will not arise, but an unnamed claimant who can be identified by other means as the target of a defamatory allegation will be able to sue. So too might a person who shares the same name as the intended target of the publication.
The difference between libel and slander
Defamation is the generic term for libel and slander. Where the defamation is in writing or in some other permanent form it is a libel. Where it is spoken or in some other temporary form it is a slander. In certain slander claims it is necessary for the claimant to prove financial loss.
A claimant who proves these matters will win the case, unless the defendant can establish one or more of the following defences.
Defences
The three most common defences are as follows:
Justification
This really means "truth". The defendant must show that the allegation complained of is factual as opposed to comment (see below) and is true or substantially true. Immaterial errors will not therefore prevent the defence from succeeding. Whether an error is material or immaterial is often a very subjective issue for the jury to decide, which involves balancing the seriousness of what has been proved against the seriousness of what has not been proved.
Fair comment
This defence protects statements of comments or opinion as opposed to statements of fact. The word "fair" is inappropriate, because the comment or opinion could be exaggerated or prejudiced provided it is honestly held. The opinion however, must be based on facts that are true or sufficiently true and relate to a matter of public interest.
Privilege
In certain circumstances, the law regards freedom of speech to be more important than the protection of reputation and allegations that may be false and defamatory will nevertheless be protected by the defence of privilege. The most widely known examples are proceedings of the courts and Parliament. However the defence is flexible and covers any situation where it is felt to be of overriding importance that people should be free to speak their mind, e.g. certain business communications and public meetings.
There are two types of privilege. Absolute privilege is an unassailable defence that only applies in certain limited cases. In contrast, the defence of qualified privilege will be lost where the defendant has been malicious (see below). The most common form of qualified privilege is where the defendant has a "legal, moral or social duty or interest" in making the publication and the recipients have a corresponding duty or interest in reading or hearing them. A common example would be an employment reference. More recently the courts have expanded the concepts of duty and interest to protect the media when they publish material on a matter of public interest which they reasonably believe to be true, but which turns out to be false. The ambit of this category of qualified privilege is, at present, uncertain. The second type of qualified privilege is in respect of the publication of reports of various documents and proceedings. These are set out in Schedule 1 of the Defamation Act 1996.
Malice
In the case of fair comment and qualified privilege, the defence will be lost if the claimant can prove that the defendant has been motivated by "malice". Malice means an improper motive for publication. To establish malice it is usually necessary for a claimant to show that the defendant knew that the publication was false or was indifferent to its truth. So a person who makes a mistake in good faith is not guilty of malice.
The remaining defences are as follows:
Secondary responsibility
The defendant has an innocent and secondary role in the publication of the defamatory statement. (s.1 of the Defamation Act 1996). This is a defence that may be available to internet service providers. It will be lost as soon as the defendant is put on notice that he is disseminating a defamatory statement.
Offer of amends
An offer to make amends volunteered by a defendant who published in good faith, which is not accepted by the claimant.
Limitation
The claimant's action has been brought too late. There is a one-year time limit for bringing a defamation claim.
Consent to publication
The claimant expressly or impliedly agreed to the publication taking place.
Accord and satisfaction (Waiver)
The claimant has expressly or impliedly agreed not to pursue an action against the defendant.
Judge and Jury
Either party has the right to have the action tried by a jury, except where there are large numbers of documents or complicated scientific inquiries. In a jury trial most issues are decided by the jury, but the judge retains power in certain circumstances to direct the jury to dismiss or uphold all or part of a party's case if he believes that no reasonable jury could reach a different conclusion. Furthermore, where a judge is satisfied that either the claimant or the defendant has no realistic chance of success at trial, he may dismiss the claim or enter judgment at an early stage under what is known as the summary procedure.
If the claimant wins
A claimant who wins a defamation claim is generally entitled to an award of damages and an injunction to prevent the defendant from publishing the same or similar allegations.
Damages
It is very difficult to give an estimate as to the likely damages that a jury might award in a defamation claim. The following factors are relevant.
(a) The seriousness of the defamatory allegation. In John -v- MGN, Lord Bingham M.R. said "The more closely it [the defamation] touches the plaintiff's [claimant's] integrity, professional reputation, honour, courage, loyalty and the core attributes of his personality, the more serious it is likely to be".
(b) The size and influence of the circulation.
(c) Whether the claimant has suffered any financial loss.
(d) Whether the claimant has suffered actual injury to reputation e.g. exclusion.
(e) The conduct of the defendant. Where the defendant has behaved in a high-handed manner or been guilty of misconduct, this can "aggravate" i.e. increase the damages. In contrast, where the defendant has behaved responsibly e.g. by promptly publishing an apology it can "mitigate" i.e. reduce the damages. Where the defendant advances a justification defence which fails this can substantially aggravate the damages even if the defence is put forward in good faith.
(f) Where there is an element of truth in the publication, but not sufficient to establish justification. If the jury believes that the justification defence has only barely failed it could award only a nominal sum in damages. Where it is proved that the claimant has a bad reputation this can mitigate damages.
(g) The impression of the claimant on the jury. Although not strictly legally relevant, jurors inevitably take into account their own feelings about the claimant when assessing damages.
It should also be noted that the judge will inform the jury of the sort of sums that are awarded for pain and suffering in personal injury cases. The jury are not obliged to seek to compare the seriousness of the libel with say, the seriousness of losing an eye, currently worth about £30,000. Although, a jury will never give reasons, it appears that on occasions an attempt is made to make a direct comparison with personal injury awards, which can lead to a relatively small award. Alternatively, the jury might simply regard the personal injury maximum of around £200,000 (for quadriplegia) as a ceiling, not a comparator.
Injunction
This is a court order restraining the defendant from publishing the same or similar defamatory allegations. A defendant who breaches the order can be fined or sent to prison for contempt of court.
Apology
A judge or jury cannot force a defendant to apologise. However, where the claimant succeeds under the summary procedure, the defendant can be compelled to publish a summary of the court judgment. Furthermore, a newspaper or magazine defendant is likely to be bound by the Press Complaints Commission's Code of Conduct that requires them to report the outcome of libel proceedings in which they are involved. Most actions settle before trial, in which case, it is common for the defendant to agree to apologise, often in the form of an agreed statement read in the High Court (which will be reported by the media if the subject matter is of interest).
Costs
These will generally be paid by the defendant if the claimant wins and vice-versa, although all of the costs of the winning party may not be recoverable.
