Defamation, Libel, Slander and Defences Lecture

Defamation is, in essence, the act of publishing an untrue statement which negatively affects someone’s reputation. Taken at face value, this definition is obviously far-reaching, covering acts as trivial as one classmate writing a joke on a scrap of paper and passing it to another. Luckily, both common law and statute law have developed a framework to limit the extent of the tort of defamation. This has involved a significant balancing act – on the one hand, the law needs a way to deal with damaging false statements, else an individual with enough money or media control could shape public perception at will. On the other, freedom of expression stands as a key facet of liberal society. Indeed, if absolute truth were a legal requirement, art, comedy and criticism would disappear in the blink of an eye.

The key authority is the Defamation Act 2013, which helps to straighten out the significant body of case law which had built up over the years. The overall aim of the Act was to rebalance the law towards protecting freedom of speech; in other words, it benefits defendants more than it does claimants. It should be noted that the Act does not destroy the common law, which remains important for clarifying key principles and terms (although the Act does override any contradictory common law). The same general definition of defamation still applies, but its elements have been slightly recast by the Act. The four primary components of defamation are: a defamatory statement (this has a particular legal definition), about the claimant, which is published, and which has caused or is likely to cause serious harm to the claimant’s reputation. Before continuing to the elements, it is worth noting the distinction between libel and slander.

Libel and slander

Although ‘defamation’, ‘libel’ and ‘slander’ are often used in everyday parlance to mean the same thing, they have specific legal meanings. The foremost thing to note is that libel and slander are simply two different types of defamation; defamation is the overarching tort, and libel and slander are just two different ways of committing that tort. The distinction between the two is somewhat anachronistic, and most legal systems have done away with it (indeed, it was recommended by the 1975 Faulks Committee that the same should happen here – it did not). Nonetheless, the distinction remains in place under the common law, and slightly different rules dictate when each is actionable. Since they are different forms of defamation, they both remain subject to the general principles governing the tort of defamation (in other words, the sections on libel and slander below should be read in conjunction with the section that follows on the elements of defamation).

Libel

Libel refers to permanent defamatory statements. This covers anything which is written (books, newspapers, letters), anything which is broadcast (television or radio, as per s.1 of the Defamation Act 1952 and s.166 of the Broadcasting Act 1990), and theatre productions (as per s.4(1) of the Theatres Act 1968). The ‘permanence’ requirement does not mean ‘forever’ (because on a long enough timeline, nothing is), but rather communication which exists for longer than the time the original message is communicated. Thus, the courts have gone as far as suggesting that skywriting can constitute libel since the writing takes time to disperse, as in Gulf Oil (GB) Ltd v Page [1987] Ch 327, which concerned a plane towing a defamatory banner behind it.

Words are not necessary; it merely must be a type of permanent communication. Thus in Monson v Tussauds Ltd [1894] 1 QB 671, the defendant placed a waxwork of the claimant near its ‘Chamber of Horrors’ exhibit. He had been tried for murder but not convicted. Since this was a permanent communication, it was held to be libel (described by the court as libel by innuendo).

It should be noted that criminal libel no longer exists in English law. The common law offences of seditious libel, obscene libel and criminal defamatory libel were abolished by s.73 of the Coroners and Justice Act 2009. Blasphemous libel had already been abolished by s.79 of the Criminal Justice and Immigration Act 2008. Defamatory libel is therefore now an exclusively civil matter.

Slander

Slander is a defamatory statement which is non-permanent. In essence, it covers defamatory statements which are not included under libel. The key example is spoken word – an untrue statement whispered in the ear of the right person can be devastating to an individual, and so the law recognises this. Gestures can also constitute slander, since they are a form of non-permanent communication – thus, even those who communicate via sign language are covered by the law.

Because non-permanent statements have traditionally been considered to have a lesser effect than permanent statements, a claimant for slander must show that they have suffered ‘special damage’ – in effect, a loss which can be estimated in monetary terms. The courts have, however, stretched this definition to include loss of a marriage prospect (in Speight v Gosnay [1891] 60 LJQB 231), and loss of consortium (effectively, losing the financial support of a family member, as in Lynch v Knight [1861] 9 HLC 777).

There are two exceptions to the requirement for special damage, in which slander is actionable per se. Firstly, if it is imputed that the claimant has committed a criminal offence punishable by imprisonment (in the first instance, as opposed to as a repeat offence), as per Gray v Jones [1939] 1 All ER 798. This is because statements of this nature can quite easily lead to exclusion from society and other negative effects.

Secondly, if the statements are calculated to disparage the claimant in his or her profession, business or office. Thus, in Foulger v Newcomb [1867] LR 2 Ex 327, the claimant was a gamekeeper tasked with preserving foxes. A slanderous statement was made that he was poisoning them instead. This was actionable, since the statement was directed against his ability to practise his profession. It should be noted that the statement must be based on the claimant’s calling, rather than merely being an unrelated statement which might nevertheless affect others’ perception of the claimant’s ability to undertake that calling. Thus, in Jones v Jones [1916] 2 AC 481, the statement was that a schoolmaster had committed adultery on school premises. This was not actionable – the statement was not closely related enough to the claimant’s profession. In contrast, in Thompson v Bridges [1925] 273 SW 529, a schoolmaster was slanderously accused of sleeping with a student. This was calculated to disparage the claimant in his profession and so was actionable without proof of special damage. Much like slanderous statements regarding criminal acts, such statements are actionable per se because they can effectively destroy an individual’s ability to pursue their chosen profession.

It used to be the case that imputing that a girl or woman was unchaste or adulterous via slander was actionable per se. This was repealed by s.14(1) of the Defamation Act 2013 (presumably because this exception relied on anachronistic views of women’s societal ‘worth’). It also used to be the case that imputing that someone had a contagious or infectious disease was an exception – this was repealed by s.14(2) of the 2013 Act. Special damage is now required in both of these situations.

Slander is not a criminal offence.

Since slander usually requires special damage and libel does not, it will usually be preferable for a claimant to argue that libellous defamation has occurred, if possible. It should also be noted that since s.1(1) of the 2013 Act requires proof of ‘serious harm’ for all defamation claims (whether libel or slander), the practical gap between the two has narrowed; a claimant must now always demonstrate a significant impact on their reputation regardless of the form the defamation takes.

Elements of defamation

The statement must be defamatory

The definition of a defamatory statement is found in the common law. Since the communication of concepts and sentiments is an inherently inexact phenomenon, so too is the definition of a defamatory statement.

Whilst the edges of what constitutes a defamatory statement are a little fuzzy, the general concept can be found through reference to a number of cases. The first instance of note is the definition advanced in Parmiter v Coupland.

This definition can be supplemented by that employed in Sim v Stretch.

This provides a rough basis for a defamatory statement as something which negatively affects a claimant’s reputation, which might affect perception of that person’s ability to do their job, which might cause an individual to be considered a person of poor standing (someone you would rather not have around), and/or someone who is not to be taken seriously or deserving of respect. None of these criteria represent a right that any individual has – rather, if someone has built themselves a truthful reputation as a decent, competent person (for example, by not stealing, by doing their job well and by giving to charity), they have a right not to have that reputation destroyed by falsehoods (that they are a thief, incompetent, or greedy). Thus, just as an individual has a right not to have their wages stolen, someone who earns themselves a good reputation has a right not to have that reputation stolen or tarnished.

Most notably, reputation is not an inherent characteristic but is a matter of perception – a person stranded solo on a desert island has no reputation at all. Thus, the defamatory nature of a statement is not based on the reaction of the claimant to that statement, but rather the reaction of others to it. This means a statement cannot be defamatory if communicated only to the subject of that statement (if you are told you are a thief, you know that is not true, and so your perception cannot possibly be changed).

There is no need for a claimant to show that the statement had a particular effect on certain persons or the public in general (else they would have to run absurd surveys and polls for the sake of evidence); instead, they must simply argue that the defamatory statement would have had the above-mentioned negative effect on the claimant’s reputation in the mind of an ordinary, reasonable recipient. This principle is essentially incorporated in s.1(1) of the 2013 Act, which dictates the need to show either serious harm, or likely serious harm, to reputation. As a general rule, statements which are clearly a matter of raised passions or vitriol will not be regarded as defamation, since the ordinary person will usually be taken to know the difference between a statement made out of anger and one made calmly (and that the former type of statement should not be given much weight). This can be seen in Penfold v Westcote [1806] 2 B & P (NR) 335. The defendant yelled at the claimant “…come out, you blackguard rascal, scoundrel, Penfold, you are a thief!” This was not held to be slanderous (see the section above on imputing criminal status), because anyone who heard the accusation would realise that it was said in the heat of passion. However, it is doubtful that such a defence could be applied in the case of written or recorded statements (since the defendant invariably has a chance not to distribute their statement, and it is very difficult for a reader to infer that such statements are made merely out of momentary passion). In short: context and content are crucial to a statement being of a defamatory nature.

With the general definition above in place, the nature of a defamatory statement can be best understood through its application, as in Byrne v Deane.

The scope of defamation can be seen in a wide range of scenarios. Thus in Berkoff v Burchill [1996] 4 All ER 1008, a journalist described the claimant, an actor, as “hideously ugly”. Whilst such a statement would not ordinarily be defamatory (beauty is, after all, in the eye of the beholder), it was in this case, since the claimant made his living as an actor and thus the statement was held to single him out as an object of ridicule.

In Donovan v The Face [1992] (unreported), the claimant, Jason Donovan, was outed as gay by the defendant. Donovan sued for defamation, not on the basis that the accusation itself was defamatory, but on the basis that it carried the implication that he was intentionally deceiving the public (and thus was both a liar and a hypocrite).

The context principle can be seen in Cassidy v Daily Mirror Newspapers Ltd [1929] 2 KB 331. The defendant published a photo of a couple, claiming that it was of the claimant’s husband and his supposed fiancée – this information came from the claimant’s husband himself. The caption was actually false – the claimant was married (although she did live apart from her husband). Since this implied that the claimant was not married, the photo had the effect of implying that the claimant was in fact her husband’s mistress, not his wife. In a modern context, the claimant might have had a harder time arguing that such an implication was injurious to her reputation. Such a case also demonstrates that it is not just the bare statement which is relevant, but any reasonably drawn implication. This further demonstrates the fact that the definition of defamation is based on the mind of the perceiver, rather than the publisher. In this case, the defendant did not know that it was publishing a falsehood or the effect this would have on the claimant. Nonetheless, the newspaper was held responsible for the content it published.

Defamation need not be particularly insidious. Thus in Tolley v Fry & Sons Ltd [1931] AC 333, the claimant, a well-known amateur golfer, was depicted in a caricature (without his permission) with a bar of the defendant’s chocolate in his back pocket. The implication was that the golfer had endorsed the brand (else why depict him?), and that therefore the golfer had pursued paid advertising opportunities contrary to his amateur status. As well as the effect on his reputation, this might have resulted in him being barred from several golf clubs. This claim was successful.

The statement must be about the claimant

It must be established that the defamatory statement is about the claimant. This will usually be straightforward if the claimant is named or identified. Sometimes, the exact subject of a statement will be unclear. Nevertheless, if the claimant can be identified from the information included in the statement, then this criterion will be satisfied, as in Morgan v Odhams Press.

If a statement is made about an individual which is true, but through coincidence also applies to another individual (who can be identified, as per Morgan v Odhams Press) for whom it is untrue, then a claim will still exist. This is illustrated by Newstead v London Express Newspaper Ltd [1940] 1 KB 377. The defendant newspaper reported that a man named Harold Newstead, living in Camberwell, aged 30, was convicted of bigamy. There were two men with these characteristics living in Camberwell, and whilst the statement was true of one of them, the innocent Harold Newstead sued in defamation. Despite the truthful nature and intent of the reporting, this was still defamation – a reasonable person would still think the statement referred to the claimant.

There is a limit to this principle, because there comes a point at which a statement does not refer to identifiable individuals but to a class of persons. This can be seen in Knupffer v London Express Newspapers [1944] AC 116. The defendant newspaper published an article on a Russian political group, Mlado Russ (or ‘Young Russia’), stating that they were fascists working to advance the aims of Adolf Hitler. Although the group had thousands of members in Russia, it had only 24 members in its British branch. The claimant, one of these members, brought a case against the defendant asserting that this was defamatory to him as the leader of the branch and thus the most prominent member. The claim, however, failed – there was nothing in the article personally identifying the claimant (and indeed, no particular reference was made to its British operations).

There thus exists a point at which a reference to a class becomes a reference to identifiable individuals. This can be seen in Le Fanu v Malcolmson [1848] 1 HLC 637. An article was published referring to the “owners of some of the Irish factories” as implementing cruel employment policies. Due to the characteristics listed of the factories, it was possible to identify the claimants as the subject of the article, and thus a claim for defamation succeeded. Lord Chief Justice Campbell noted (at 668) that where a class is described in a way which clearly refers to an individual or individuals, then that will be sufficiently precise for a defamation claim: “whether a man is called by one name […] or whether he is described by a pretended description of a class to which he is known to belong, if those who look on know who is aimed at the very same injury is inflicted…”.

The statement must be published

As noted above, defamation is about communication of a statement. This is referred to as publication, although the term has a specific legal meaning. The definition can be found in Pullman v W. Hill & Co Ltd.

If it is reasonably foreseeable that a third party will read or receive a defamatory statement which is sent directly to the claimant, then that will constitute publication, as in Theaker v Richardson [1962] 1 WLR 151. The defendant sent a letter to the claimant making a number of insulting accusations. The claimant’s husband opened and read the letter, thinking it was an election address (a political leaflet). This was held to be publication, since the claimant was able to show that the defendant anticipated that someone else might read the letter. In contrast, in Huth v Huth [1915] 3 KB 32, a nosy butler opened his master’s mail and read the defamatory statement. This was not publication, since it was unforeseeable; indeed, the butler was acting in breach of his duties. The fact that there are plenty of situations in which others open and read mail on behalf of others (secretaries, mailroom clerks) makes this a common means of publication – and thus a prudent defendant will send any defamatory remarks straight to the claimant and mark them as private (or similar).

The statement must cause serious harm

This criterion was brought into force by s.1(1) of the 2013 Act, which provides that “a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.” For bodies that trade for profit, s.1(2) requires that the serious harm must involve “serious financial loss”. This threshold replaced the previous common law position under which damage to reputation was presumed in libel cases.

The leading authority on the interpretation of the serious harm requirement is Lachaux v Independent Print Ltd.

An earlier illustration of the serious harm test in practice can be seen in Cooke v MGN Ltd [2014] EWHC 2831 (QB). The defendant newspaper published an article asserting that the claimant owned a number of properties rented to people on housing benefit and that they were kept in a state of disrepair (roughly, an accusation that the claimant was profiting from others’ poverty). The claimant could not demonstrate that this had caused serious harm (or was likely to do so), and thus the claim failed.

The serious harm threshold also interacts with the doctrine established in Jameel (Yousef) v Dow Jones & Co Inc [2005] EWCA Civ 75, under which a defamation claim may be struck out as an abuse of process where publication is so minimal that no real or substantial tort has been committed. Although Jameel predates the 2013 Act, the principle remains relevant and has been applied alongside the serious harm requirement to filter out trivial claims.

Defences

Truth

As per s.2(1) of the 2013 Act, if a statement is substantially true, then this will form a complete defence. This replaced the common law defence of ‘justification’. It should be noted that the burden of proof for showing that a statement is true rests with the defendant. The defendant does not have to show that every single detail of the statement is true, merely that it is substantially true. This can be seen in Alexander v North Eastern Railway Co [1865] 6 B & S 340. The defendant put up ‘name and shame’ posters at a number of its stations, stating that the claimant had been charged with travelling without a ticket and ordered to pay a fine or serve three weeks’ imprisonment. In fact, the sentence was only two weeks. The claimant argued this made the offence look worse than it was. The defendants successfully argued that the substance of the statement was true, and the claim failed.

Privilege

Individuals in certain roles are protected from defamation claims. This takes two forms. The first is absolute privilege. This is enjoyed by Parliamentarians (as per Article 9 of the Bill of Rights 1689, which provides that “the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament”) and members of the judiciary, as well as parties, witnesses and lawyers in judicial proceedings (as per s.14 of the Defamation Act 1996). Reports published by order of Parliament are also protected by absolute privilege under the Parliamentary Papers Act 1840.

The second is qualified privilege, which covers situations in which an individual has a duty or interest in communicating information to a person who has a corresponding duty or interest in receiving it. Statutory qualified privilege attaches to fair and accurate reports of certain proceedings and documents listed in Schedule 1 to the Defamation Act 1996 (as amended by Schedule 1 to the 2013 Act). At common law, the typical situation concerns employment references; since the referee is generally expected as a matter of good business practice to provide a reference, the law recognises that it would be unjust to punish someone for doing something they are obligated to do. Thus, whilst an inaccurate reference can be damaging, it will not give rise to a defamation claim. The exception is if a reference is given maliciously (as per Spring v Guardian Assurance plc [1994] UKHL 7). Malice will defeat any claim of qualified privilege.

Public interest

As per s.4 of the 2013 Act, it is a defence to show that the statement complained of was, or formed part of, a statement on a matter of public interest, and that the defendant reasonably believed that publishing the statement was in the public interest. This statutory defence replaced the common law defence previously known as ‘Reynolds privilege’, which was expressly abolished by s.4(6) of the 2013 Act.

The former common law defence, established in Reynolds v Times Newspapers Ltd [2001] 2 AC 127, required courts to consider a non-exhaustive list of factors when assessing whether a publisher had acted responsibly. Those factors – including the seriousness of the allegation, the steps taken to verify the information, the urgency of the matter, whether comment was sought from the claimant, and the tone of the publication – remain useful background context for understanding the rationale behind the statutory defence, even though the Reynolds test itself is no longer good law.

Under the statutory test in s.4, the court must have regard to all the circumstances of the case in determining whether the defendant’s belief that publication was in the public interest was reasonable. Section 4(4) expressly provides that the court must make such allowance for editorial judgement as it considers appropriate. The leading modern authorities on the operation of the s.4 defence include:

• Economou v de Freitas [2018] EWCA Civ 2591, in which the Court of Appeal confirmed that the s.4 defence is available to individuals (not just media defendants) and set out guidance on how the ‘reasonable belief’ element should be assessed. The court held that this is an objective test, though the characteristics of the defendant are relevant.
• Serafin v Malkiewicz [2020] UKSC 23, in which the Supreme Court considered the s.4 defence in the context of a community newspaper. The Court emphasised that the defence must be assessed by reference to the conduct of the defendant at the time of publication, and confirmed that a defendant who fails to verify a serious allegation when it would have been practicable to do so is unlikely to satisfy the reasonable belief requirement.

In essence, the courts are seeking to draw a distinction between diligent, responsible publication in good faith and disingenuous publishers attempting to use the public interest defence to protect poor-quality, salacious reporting.

Honest opinion (or ‘fair comment’)

As per s.3 of the 2013 Act, honest opinion is a defence to a defamation claim. This replaced the common law defence of ‘fair comment’. Three conditions must be met under s.3: the statement must be one of opinion (rather than fact); the statement must indicate, whether in general or specific terms, the basis of the opinion; and an honest person could have held the opinion on the basis of any fact which existed at the time the statement was published, or anything asserted to be a fact in a privileged statement published before the statement complained of.

The key to advancing this defence is that the statement must be presented as opinion, rather than fact, and that the subject matter is actually a matter of opinion rather than verifiable fact. So a statement from an author that ‘2’ is the best number is an opinion, and a matter of opinion. In contrast, a statement that ‘2+2=5’ might be an author’s opinion, but the answer to ‘2+2’ is not a matter of opinion but fact. Thus this defence would not apply.

The opinion must also be one which the court regards as one which an honest person could have held based on the facts available – so conjecture which ignores obvious evidence to the contrary will not be protected by this defence. Under s.3(5), the defence is defeated if the claimant shows that the defendant did not hold the opinion.

Reportage

Reportage is a common law doctrine, recognised and developed in cases such as Roberts v Gable [2007] EWCA Civ 721, which protects the neutral reporting of both sides of a dispute without adopting the truth of either. The doctrine applies where the publisher is reporting the fact that allegations have been made, rather than adopting or endorsing them. In Roberts v Gable, the Court of Appeal held that the key question is whether the report has the effect of adopting the truth of the allegations; if the report is a fair and disinterested account of the dispute, then the public interest defence (now under s.4 of the 2013 Act) will apply.

This is based on the distinction between republishing a statement (which attracts liability) and merely reporting that a statement has been made (which may not). Thus, a newspaper which reports that a public figure has made an allegation will not necessarily be regarded as making that allegation itself, even though it has technically given the allegation prominence. The principle has been affirmed post-2013 Act and is now typically advanced as an application of the s.4 public interest defence.

Website operators

As per s.5 of the 2013 Act, the law has developed a particular framework to deal with the operation of websites, aimed at accounting for the fact that, unlike conventional media, there is often an important distinction between the content published by a website operator and the content published by its users. Since it would be overly onerous (and often undesirable) to expect website operators to moderate every statement made on their platforms, a website operator can defend itself from a defamation claim by showing that it did not post the statement complained of.

A claimant can defeat this defence if they show that it was not possible for them to identify the person who posted the statement. Thus, if a website operator provides users with absolute anonymity, it may be held responsible for the content posted there. A claimant can also defeat this defence by showing that they gave the website operator a notice of complaint in accordance with the procedure set out in the Defamation (Operators of Websites) Regulations 2013 (SI 2013/3028), and that the operator failed to respond to the notice in the prescribed manner. The Regulations set out a detailed process by which the website operator must notify the poster and, if the poster does not respond or refuses to provide their identity, must remove the material.

Section 10 of the 2013 Act further provides that a court does not have jurisdiction to hear a defamation action against a person who is not the author, editor or publisher of the statement unless the court is satisfied that it is not reasonably practicable for an action to be brought against the original author, editor or publisher. This supplements the s.5 defence by further protecting secondary publishers.

It should be noted that the Online Safety Act 2023 has introduced a broader regulatory framework for online platforms, including duties relating to illegal content and content harmful to adults. While the 2023 Act does not directly amend the law of defamation, its provisions on content moderation and platform duties may influence the practical landscape in which defamation claims against website operators arise.

Further notes

The dead cannot be defamed (or defame)

Although the tort is one of injuring reputation, this only applies to the reputations of the living. Thus, the dead cannot be defamed, and nor can they be a defendant in a defamation case. A defamation claim is a personal action and does not survive the death of either party (it cannot be continued by or against an estate).

Trial by jury (with permission)

There exists the ability for a defamation claim to be heard by a jury. This used to be a right, but s.11 of the 2013 Act removed the presumption in favour of jury trial, providing that a trial will be without a jury unless a court orders otherwise. The willingness of courts to order a jury trial is doubtful, considering the added cost, time and complexity this would add to any given case.

Limitation period

The limitation period for claims for defamation is unusually short, lasting only one year from the date on which the cause of action accrued, as per s.4A of the Limitation Act 1980. Section 8 of the 2013 Act introduced the ‘single publication rule’: if a statement is published and then subsequently published by the same person in a form which is substantially the same, then the limitation period runs from the date of first publication. So if a statement is published online on one website in January and then again on another website (by the same publisher) in June, the one-year period runs from January. This rule does not apply to publication in a materially different form – so if a statement is published online in January and then in a newspaper in June, a claim in respect of the newspaper publication can be brought in the year running from June.

Company reputation

Unless the harm is of a serious financial nature, organisations which trade for profit cannot bring a claim for defamation, as per s.1(2) of the 2013 Act. This means that a trading company must demonstrate that the publication has caused or is likely to cause it serious financial loss, which is a higher bar than for individual claimants.

Strategic lawsuits against public participation (SLAPPs)

A significant recent development in defamation law is the introduction of provisions to combat SLAPPs – strategic lawsuits brought by wealthy claimants, not for the genuine purpose of vindicating their reputation, but to intimidate and silence critics through the threat of expensive litigation. Sections 194–197 of the Economic Crime and Corporate Transparency Act 2023 introduced an early dismissal mechanism for claims relating to ‘relevant publications’ concerning economic crime. Under this mechanism, a court may dismiss a claim at an early stage if it is satisfied that the claim has been brought to restrain the defendant’s exercise of the right to freedom of speech and that the public interest in allowing the claim to proceed does not outweigh the public interest in protecting that right. While currently limited to claims connected with economic crime, the government has indicated an intention to extend these provisions to other SLAPPs in due course. This is an area of the law which is actively developing and is worth monitoring.

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