Is it a case of turning the other cheek or Defamation!

In the last of my trilogy of articles on reputation management, I’m focusing today on defamation. My other two articles can be found on my LinkedIn account under the headings: “Unwanted Attention” on harassment and “Breach of confidence” where confidential information is misused.

 What is defamation?

There is no precise definition but in Sim v Stretch [1936] 2 All ER 1240, HL, Lord Atkin said it means a matter which would “tend to lower the plaintiff in the estimation of right-thinking members of society generally” and further case law goes on to say where it tends to expose a person to be shunned or avoided or subject contempt or ridicule.

 What else do you need to establish to bring a claim in England & Wales?

 s.1 of the Defamation Act 2013 (“DA 2013”) states:

 “(1)A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.

(2) For the purposes of this section, harm to the reputation of a body that trades for profit is not “serious harm” unless it has caused or is likely to cause the body serious financial loss.”

s.15 of DA 2013 states:

"In this Act—

“publish” and “publication”, in relation to a statement, have the meaning they have for the purposes of the law of defamation generally;

“statement” means words, pictures, visual images, gestures or any other method of signifying meaning. "

Defamation also extends to a person’s trade, business or profession. Before bringing a claim its first important to determine if serious harm has or will take place. Therefore, depending on the facts of each case, it is important to look at the meaning of a statement or combination of statements as a matter of construction to determine their plain and ordinary meaning which it would convey to its audience. Once defamation has been established, you can then proceed to take matters further. Both individuals and companies are permitted to bring actions for defamation.

What is Libel and Slander?

Both are forms of defamation. Slander occurs when publication takes place by way of words spoken and libel occurs where the statement is published in a more permanent form e.g. newspaper article and material published on the internet etc.

 I would add caution here, there are defences available to defamation, but I am not going to refer to them in this article for want of making it too lengthy. Claims, for defamation will normally be heard in the Queen’s Bench Division of the High Court and the DA 2013 removes the presumption to jury trials but there are exceptions to this.

 What are the remedies?

Well, the High Court has jurisdiction to grant an injunction to restrain publication of defamatory matters in all cases where it thinks just and convenient to do so. It can also award damages.

How are damages awarded by the court?

General damages: are awarded on a compensatory basis, to restore the injured party to the position he would have been if the action complained off had not been committed. The overall ceiling, at present, for general damages is around ￡300,000 for defamation actions (this is for guidance purposes only).

The factors which the court take into account when deciding the level of compensatory damages are best set out in John v MGN Ltd [1997] QB 586, the Court of Appeal, Civil Division, Sir Thomas Bingham MR said:

“The successful plaintiff in a defamation action is entitled to recover, as general compensatory damages, such sum as will compensate him for the wrong he has suffered. That sum must compensate him for the damage to his reputation; vindicate his good name; and take account of the distress, hurt and humiliation which the defamatory publication has caused. In assessing the appropriate damages for injury to reputation the most important factor is the gravity of the libel; the more closely it touches the plaintiff's personal integrity, professional reputation, honor, courage, loyalty and the core attributes of his personality, the more serious it is likely to be. The extent of publication is also very relevant: a libel published to millions has a greater potential to cause damage than a libel published to a handful of people. A successful plaintiff may properly look to an award of damages to vindicate his reputation: but the significance of this is much greater in a case where the defendant asserts the truth of the libel and refuses any retraction or apology than in a case where the defendant acknowledges the falsity of what was published and publicly expresses regret that the libelous publication took place. It is well established that compensatory damages may and should compensate for additional injury caused to the plaintiff's feelings by the defendant's conduct of the action, as when he persists in an unfounded assertion that the publication was true, or refuses to apologise, or cross-examines the plaintiff in a wounding or insulting way. Although the plaintiff has been referred to as 'he', all this of course applies to women just as much as men.” Emphasis added.

Exemplary damages: these can be brought where a party has published the defamatory material knowing that they were false, or recklessly as to their truth, having calculated the benefit/advantage would outweigh any compensation payable (oppressive acts of public servants employed by the Crown who have engaged in defamatory publications would also entitle the party bringing the claim to such damages – suffice to say it is not confined exclusively to the commercial world).

Special damages: Can be awarded to compensate for financial loss which has been suffered as a result of the publication of the defamatory material. For example, a professional whose trade has suffered a loss as a result of defamatory material being published can claim a loss of profits and/or earnings, subject to the relevant facts being established.

Here are some examples where a defamation action might be appropriate:

• are online business selling consumer branded products and a publication claims the products are counterfeit, which after investigation it turns out the allegations are false. The publication resulted in the business suffering serious financial losses;
• an individual is accused of criminal conduct (which is not proven to be true) as a result of adverse publications in the press the individual suffers serious harm, or it is likely to cause serious harm to his reputation.

Conclusion

The trilogy of articles are useful foundations in understanding in simple terms how the law protects a person’s reputation. 

It is important to remember, subject to the facts of each case, defamation does not take place in isolation. It can interlink with other causes of action. For example, under English law a person can be found guilty of harassment purely by words spoken (without needing to prove the words are true or false) and the same facts may also give rise to an action for defamation. Defamatory publications tend to happen (without warning) so the aggrieved party finds out after the event. There is something very sinister in such conduct. In my opinion, where someone targets someone in such a manner which is designed to harm a person’s reputation, they deserve to face legal responsibility for their actions.

Should anyone require professional advice on defamation, please do not hesitate to get in touch with me at my firm, SNV Law.

Sundeep Oberoi,

Solicitor, 9 January 2019

Disclaimer: the contents of this article are for general information purposes only. Nothing in this article constitutes legal advice or give rise to a solicitor/client relationship. The reader should obtain specialist legal advice in relation to their specific circumstances. No warranty, express or implied, is given as to its accuracy and the author does not accept liability for error and/or omission.