Defamation, Libel, Slander and Defences Lecture

Defamation is, in essence, the act of publishing an untrue statement which negatively affects someone’s reputation. The claimant need not prove falsity. It is for a defendant relying on truth to establish it. 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.

In England and Wales, 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 the 1975 Faulks Committee recommended its abolition, but that recommendation was not adopted. 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 defamatory material which is written (books, newspapers, letters), material broadcast in a programme service (television or radio, formerly under s.1 of the Defamation Act 1952 and now under 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 refers to the form of the communication. Written words on a banner remain in permanent form even when it is seen only briefly. Gulf Oil (GB) Ltd v Page [1987] Ch 327 concerned a plane towing a banner behind it. The injunction was granted in conspiracy. The court did not decide whether skywriting would be libel.

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. The display was capable of implying that he was a murderer. Whether it amounted to libel was a question for the jury.

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 generally 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). In Lynch v Knight (1861) 9 HLC 577, the House of Lords left open whether loss of a spouse’s society was sufficient. The claim failed because the husband’s decision to send his wife away was not a natural and reasonable consequence of the words.

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 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 trapping them instead. This was actionable, since the statement was directed against his ability to practise his profession. Section 2 of the Defamation Act 1952 applies whether or not the words are spoken of the claimant in the way of their calling. Under the earlier law, in Jones v Jones [1916] 2 AC 481, the statement was that a schoolmaster had committed adultery with a married woman who worked for the school cleaner. This was not actionable without proof of special damage – the statement was not closely related enough to the claimant’s profession. In the Kentucky case of Thompson v Bridges [1925] 273 SW 529, a schoolmaster was accused of misconduct with his pupils. The court held the words actionable without proof of special damage and left the question of malice to the jury because the occasion was privileged. 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 unless one of the remaining exceptions applies.

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 actual or likely serious harm to 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 there is no publication if the statement is communicated only to its subject (if you are told you are a thief, you know that is not true, and so your perception cannot possibly be changed).

To establish defamatory meaning, 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). The question is how an ordinary, reasonable recipient would understand it. Serious harm is a separate requirement under s.1(1) of the 2013 Act and may be inferred from the facts of the publication. Words spoken in anger may be understood as mere abuse, but that depends on the circumstances. 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!” The court declined to disturb the jury’s finding that the words imputed theft. Context matters for written statements too, including remarks made in conversation on social media (Stocker v Stocker [2019] UKSC 17).

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 was alleged to have 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), the Court of Appeal held that it was capable of being defamatory in this case, since the claimant made his living as an actor and the words could single him out as an object of ridicule.

In Donovan v The Face [1992] (unreported), the claimant, Jason Donovan, complained that the defendant had suggested he was gay and had lied about it. 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). To readers who already knew the claimant was living as his wife, this implied that the claimant was his mistress, not his wife. This is a true innuendo, a meaning that depends on facts known to the reader. 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. The claimant succeeded on liability. A new trial was ordered on damages.

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 reasonably identified by a recipient from the statement and what that recipient already knows, 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 that individual may have a claim. 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. Sections 2–4 of the Defamation Act 1996 allow a publisher to offer to correct the statement, apologise and pay compensation and costs. An unaccepted offer may provide a defence under s.4.

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 about 2,000 members in all, 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 Malcomson [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 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 well 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 it is publication if the third party does so, 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). The jury was entitled to find that the defendant ought reasonably to have foreseen that the husband would open it. In contrast, in Huth v Huth [1915] 3 KB 32, a nosy butler took a letter out of an unsealed envelope 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 – marking a letter private is relevant to foreseeability but does not settle the question.

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 have caused or be likely to cause “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 article criticised landlords on the street featured in the television programme Benefits Street and drew attention to the salary of the housing association’s chief executive. The association and its chief executive sued. Neither established actual or likely serious reputational harm. The newspaper’s prominent apology was material to that finding.

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, abuse of process is a separate issue. In Mueen-Uddin v Secretary of State for the Home Department [2024] UKSC 21, the Supreme Court explained that the cost of a claim compared with its likely damages does not itself justify striking it out. Vindication may matter even where similar allegations have been made elsewhere.

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 convicted of travelling on a train for which his ticket was not valid and refusing to pay the proper fare and ordered to pay a fine or serve three weeks’ imprisonment. In fact, the term in default of payment 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. Where a statement conveys distinct imputations, s.2(3) preserves the defence if those not shown to be substantially true do not seriously harm the claimant’s reputation in light of those proved true.

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”) for proceedings in Parliament. At common law it also protects judges, parties, witnesses and lawyers in respect of statements made in the course of judicial proceedings. Section 14 of the Defamation Act 1996 separately protects fair and accurate contemporaneous reports of proceedings in public before a court. 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 s.7 of the 2013 Act). For Part II of the Schedule, refusing a request to publish a reasonable explanation or contradiction can defeat the privilege. Section 6 of the 2013 Act also protects statements on scientific or academic matters published in a scientific or academic journal following independent review by the editor and at least one expert. At common law, the typical situation concerns employment references. Whilst a reference given without malice will ordinarily be privileged in defamation, a referee may be liable in negligence for a carelessly prepared reference, as in 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. It applies to both fact and opinion. 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 defendant must actually have held the belief. Its reasonableness is assessed objectively in light of all the circumstances, including the defendant’s role.
• 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 former Reynolds factors must not be turned into a checklist. Whether steps to verify an allegation could reasonably be expected depends on all the circumstances.

Where a statement remains available online, the defence may cease to apply if circumstances change. The claimant must then establish actual or likely serious harm from the publication during the period no longer protected (Banks v Cadwalladr [2023] EWCA Civ 219).

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 – an honest person need not be fair-minded or reach a balanced conclusion. Under s.3(5), the defence is defeated if the claimant shows that the defendant did not hold the opinion (Bridgen v Hancock [2026] EWCA Civ 991). Where the defendant published another person’s opinion, s.3(6) instead asks whether the defendant knew or ought to have known that the author did not hold it.

Reportage

Reportage developed at common law and was recognised in cases such as Roberts v Gable [2007] EWCA Civ 721, concerning 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. Section 4(3) of the 2013 Act now applies to an accurate and impartial account of a dispute to which the claimant was a party. In assessing reasonable belief, the court must disregard any omission to verify the truth of the imputation conveyed by such an account.

Simply attributing an allegation to someone else does not provide a defence to republishing it. A publisher relying on s.4 must still show that the dispute concerned a matter of public interest and that they reasonably believed that publishing the account was in the public interest.

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 by showing three things: they lacked sufficient information to bring proceedings against the poster, they gave the operator a notice of complaint, and the operator failed to respond in the prescribed manner. The Defamation (Operators of Websites) Regulations 2013 (SI 2013/3028) set out when the operator must contact the poster or remove the material. A poster can give their name and address to the operator without consenting to their disclosure to the claimant. Malice on the operator’s part defeats the defence. Moderating posts does not of itself do so.

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 author, editor or publisher. These terms have the meanings in s.1 of the Defamation Act 1996. That section also provides a defence for someone who was none of the three, took reasonable care and neither knew nor had reason to believe that what they did caused or contributed to publication of a defamatory statement.

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, for services likely to be accessed by children, duties to protect children from harmful content. 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 under s.1(1) of the Law Reform (Miscellaneous Provisions) Act 1934 (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. If the claimant succeeds, the court may award damages or grant an injunction. Sections 12 and 13 of the 2013 Act also allow it to order the defendant to publish a summary of the judgment, a website operator to remove the statement, or a distributor who is not its author, editor or publisher to stop distributing it. Where the defendant is domiciled outside the UK, s.9 requires England and Wales to be clearly the most appropriate place to bring the action out of all the places where the statement was published.

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 to the public or a section of it 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 normally runs from January. The rule does not apply if the manner of the later publication is materially different. Moving from a website to a newspaper does not by itself settle this. The court may consider the prominence and extent of the later publication. Under s.32A of the 1980 Act the court can disapply the time limit if it is equitable to do so.

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. A governmental body such as a local authority cannot sue for defamation of its governing reputation, although an individual officer identified by the words may sue (Derbyshire County Council v Times Newspapers Ltd [1993] AC 534).

Strategic lawsuits against public participation (SLAPPs)

A significant recent development in defamation law is the introduction of provisions to combat SLAPPs – strategic lawsuits against public participation. Sections 194 and 195 of the Economic Crime and Corporate Transparency Act 2023 concern disclosures in the public interest about economic crime. The claimant’s conduct must restrain or be intended to restrain the defendant’s freedom of speech, and some of that conduct must be intended to cause harassment, alarm, distress, expense or other harm or inconvenience beyond what is ordinarily encountered in properly conducted litigation. Under CPR 3.4(2)(d) the court may strike out such a claim if the claimant fails to show that it is more likely than not to succeed at trial. Under CPR 44.2(9), the court may not order the defendant to pay the claimant’s costs on a SLAPP claim unless the defendant’s misconduct in relation to the claim justifies it.

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