DEFAMATION:

Defamation is a tort which protects the claimant against attacks to their reputation. This may
occur in a number of ways. The attacks may be spoken, written, indicated by gestures or conduct
or even expressed in sign language or in code.

KINDS OF DEFAMATION:
The law divides these modes of communication into libel and slander. Libel generally takes
permanent form, while slander is temporary. This is a relatively crude distinction, but remains
part of English law. On this basis, text or a photograph in a newspaper will amount to libel.
Shouting insults in the classroom will be deemed to be slander.

WHAT IS NEEDED TO PROVE DEFAMATION?

Claimant has to prove three things to prove defamation are mentioned below:

that the statement

is defamatory,

refers to the
claimant and has
been published to
a third party,

The statement is
presumed to be
false unless proven
otherwise.

DEFAMATORY ACT: STATEMENT ABOUT PUBLICATION:

THE CLAIMANT:
Defamation Act has added to A claimant will only be able to Section 8 of the Defamation
the common law test as bring an action for defamation Act 2013 introduces changes
established in Sim v Stretch if they can show that the to the multiple publication rule
words in the statement in circumstance (2), that is
referred to them. Otherwise, where the defamatory
the claimant would not have statement is repeated
standing to sue. This is not a (republished) by the original
problem where the claimant is maker of the statement.
named, for example,
 ‘David cannot be trusted’. It is
more difficult when the
defendant makes general
statements – ‘politicians
cannot be trusted’ – or does
not name the claimant
expressly
– ‘the man with blue eyes
cannot be trusted’. The
claimant will have to prove
that an
ordinary reasonable person,
with knowledge of all the
circumstances, would
recognise
that the person referred to is
the claimant. This is not
always easy to achieve

Introduction of a The common law position is The effect of section 8 is that a

requirement to show unchanged by the Defamation person cannot be sued
substantial harm for all Act 2013. repeatedly in defamation if
potential claimants: they republish in
“substantially the same” form
s1(1) “A statement is not a defamatory statement that
defamatory unless its they originally published (the
publication has caused or is limitation period of 12 months
likely to cause serious harm to runs from the date of first
the reputation of the claimant” publication to the public).
(Jameel v Dow Jones & Co
[2005] and Thornton v
Telegraph Media Group
[2010] had already established
that trivial claims are likely to
be thrown out; an action in
defamation will not be
possible where the damage to
reputation is not sufficiently
serious or is trivial, causing no
actual damage to his
reputation. Section 1(1)
effectively puts this on a
statutory footing. What
amounts to serious harm will
need to be decided on a case
by case basis - though the
2013 Act’s Explanatory Notes
[EN] suggest that section 1(1)
is intended to ‘raise the bar’
from the common law tests
[11]).
Restrictions on the ability of S8(1) “This section applies if
companies to sue: a person
(a) publishes a statement to
Section 1(2) of the the public (“the first
Defamation Act 2013 provides publication”), and
that ‘a body that trades for (b) Subsequently publishes
profit’ may only bring a claim (whether or not to the public)
if it suffers ‘serious harm’, that statement or a statement
that is harm that ‘has caused which is substantially the
or is likely to cause the body same.”
serious financial loss’ (2) In subsection (1)
“publication to the public”
includes publication to a
section of the public.

Though serious harm is In essence, this introduces an

limited to those caused to a In In essence, this introduces
company’s financial interests ‘single publication rule’ and
(rather than, say, its goodwill means, e.g., that a newspaper
or public image), this is not a cannot be sued repeatedly for
particularly high hurdle. Not something accessed via its
least because it extends to archives.
potential (as well as actual)
losses
There were four exceptions to
requirement of ‘special
damage’ (in cases of slander).
That is, where the statement
imputes:
(1) Criminal conduct (Webb v
Beavan [1883])
(2) Incompetence in business
dealings
(3) That the claimant has a
contagious disease
(Bloodworth v Gray [1844])
(4) A lack of chastity in a
woman (Slander of Women
 Act 1891, s1).
Section 14 of the Defamation
Act 2013 abolishes (3) and (4)
on the basis that they were
dated and potentially
discriminatory.

HOW DEFAMATION ACT HAS CHANGED?

Defamation has been a longstanding staple in the law of torts in the UK. Before the royal assent
of the Defamation Act 2013 in April, the law was governed mainly by the Defamation Acts of
1952 and 1996. The introduction of the new act has brought about many changes to the way
defamation law is handled in the UK.
The Act codifies and consolidates large parts of existing case law and statute, specifically in
relation to the defences of ‘justification’ (now ‘truth’), ‘journalistic qualified privilege’ (now
‘publication on a matter of public interest’) and ‘fair comment’ (now ‘honest opinion’). The
latter two defences have been modified and are not mere codifications. Amongst other
provisions, the Act establishes (or codifies) a ‘serious harm’ threshold for bringing
defamation claim and introduces a ‘single publication rule’ (potentially of great significance to
online publication) and a new defence for website operators. The Act also reverses the
presumption regarding mode of trial to judge rather than jury. The Act is considered in more
detail below.

SERIOUS HARM:

A statement is no longer defamatory unless a claimant can show that ‘its publication has caused
or is likely to cause serious harm to [his/her] reputation…’ This section builds on the
jurisprudence of Jameel v Dow Jones & Co Inc [2005] EWCA Civ 75 and Thornton v Telegraph
Media Group [2010] EWHC 1414 (QB) and is intended to deter trivial claims. A claimant will
need to satisfy the court that the defamation is sufficiently serious and that the imputation, extent
and/or nature of the words publication is such that real reputational damage has been suffered.
An additional test applies to a body trading for profit, namely a requirement to show that a
statement has caused, or is likely to cause, serious financial loss. It seems inevitable that strike-
out applications made under section 1 will become common. However, it remains to be seen
where the court will fix the bar and to what extent it will be willing to become involved in a
detailed assessment of evidence at an early stage in proceedings.

DEFENCES FOR DEFAMATION:

COMMON LAW CHANGES INTRODUCED BY THE

DEFAMATION ACT 2013
The Defamation Act 2013 puts a number of the There are 6 defences which are specific to the
common law defences on a statutory footing. tort of defamation: (1) truth, (2) honest
opinion, (3) privilege (both absolute and
(1) Justification qualified), (4) responsible publication on a
matter of public interest, (5) offer of amends
If the defendant can prove that the content of
and (6) innocent dissemination.
the defamatory statement she made is true then
she will generally have a complete defence (1) Truth
against a claim in defamation (McPherson v
Daniels [1829]). Section 2 of the Defamation Act 2013 replaces
and renames the former common law defence
It is for the defendant (that is the person who of justification with a new statutory defence of
has made the defamatory statement) to show ‘truth’.
that the statement is true – though they do not
need to prove that every word is true – it is As with other elements of the Defamation Act,
enough to establish the essential ‘sting’ (Chase the intention is ‘broadly to reflect the current
v NGN [2002]). law while simplifying and clarifying certain
elements’ (EN [13])
Price and MacMahon have questioned whether
that section 2 was really necessary and suggest As in common law, it is for the defendant to
that it might ‘create as many if not more prove the statement is ‘substantially true’:
problems than it solves’ (p 37). The common Section 2(1) “It is a defence to an action for the
law defence of justification was relatively defendant to show that the imputation
settled. Its restatement means that we are now conveyed by the statement is substantially
in a position where the case law of common true”.
law defence has been abolished but we will
need to turn to its case law in order to Section 2(3) restates the multiple allegation
determine the meaning of the new defence. test from s5 of Defamation Act 1952 (which is
repealed by 2(4) of the 2013 Act). It deals with
a case of ‘partial truth’. If the defendant has
made multiple separate imputations about the
claimant, she may still be able to defeat the
claimant’s entire action (even if she can’t
prove all his imputations as to the claimant are
true), provided those statements which she
cannot prove are true do not seriously harm the
claimant’s reputation when compared to the
effect of those that have been proved to be true.
(2) Honest (Fair) comment (2) Honest opinion
Section 3 of the Defamation Act replaces and
The defence of honest/fair comment provided a renames the common law defence of
complete defence if the defamatory statement honest/fair comment. In order for the defence
was an honest comment on a matter of public to apply the following ‘conditions’ must be
interest established:
1. The defamatory statement is a
statement of opinion (not fact);
 2. That indicates its basis of; and
3. Could have been held by an honest
person on the basis of a fact (or
something asserted as fact in a
privileged statement) which existed at
the time of publication (even if the
defendant was not aware of the fact at
the time they made the statement).

In addition, as in common law, the defendant

must have honestly held the opinion (s3(5))(or,
if the statement is not made by the defendant,
the defendant must have known or ought to
have known, that the author honestly held the
opinion) (s3(6)).
Price and McMahon suggest that the one of the
most ‘notable reforms’ made by section 3 is the
removal of the public interest requirement (p
41). This widens the scope of the defence to an
opinion on any fact or matter. They go on to
note that:
“Section 3 may be said to exemplify the
dangers of attempting at the same time to
codify and amend a complex part of the
common law. A cottage industry may result, as
the courts attempt to clarify the extent to which
the existing law survives, and the law will
scarcely be less complex than before, since
many of the same questions will arise again;
and will have to be resolved anew; and new
questions are liable to flow from the wording
chosen for the new provisions” (p 59).
(3) PRIVILEGE
Absolute privilege: The common law position Absolute privilege: The common law position
is unchanged by the Defamation Act 2013. is largely unchanged by the Defamation Act
2013. However, section 7 amends provisions in
Qualified privilege: This defence protects the the Defamation Act 1996 on absolute and
maker of a defamatory statement where the qualified privilege in relation to the publication
following conditions are met: of certain reports of governmental, commercial
and judicial proceedings.
1. Reciprocity of duty or interest;
Qualified privilege: The general common law
2. Public interest in frank and uninhibited
test of qualified privilege is unaltered by the
communication in the situation in
Defamation Act 2013.
question;
 3. Absence of malice However media publication in the public
Situations where the defence might arise interest (the so-called Reynolds test) is no
include the provision of a reference concerning longer part of the law of qualified privilege, it
a prospective employee to his potential is an independent defence of publication in the
employer (Spring v Guardian Assurance public interest (section 4) (see below).
[1995]).
The so-called Reynolds or ‘responsible Section 6 of the Defamation Act extends the
journalism’ test is abolished by s4(6) of the rules of qualified privilege to ‘peer-reviewed
Defamation Act 2013. statements in scientific or academic journal’ if
the following conditions are met:
1. the statement relates to scientific or
academic matter; and
2. an independent peer-review of the
statement’s scientific or academic merit
was carried out by the editor of the
journal and one or more experts.

Where the publication of the statement is

privileged by virtue of section 6, ‘the
publication of a fair and accurate copy of,
extract from or summary of the statement or
assessment is also privileged’ (s6(5)).
The section is aimed at facilitating academic
debate and its introduction is likely due to a
small number of cause célèbres which were
influential in the campaigns surrounding the
enactment of the new Act– though interestingly
the new defence would not have been
applicable in these cases. The defence can be
defeated by malice (s6(6)).
 (4) Responsible publication on a matter of
public interest
Section 4 of the Defamation Act 2013
introduces a new statutory defence of
‘publication on a matter of public interest’. It
retains the requirement that the defamatory
statement “was, or formed part of, a statement
on a matter of public interest” (as established
in Reynolds v Times Newspapers [2001]).
However, it goes further than the Reynolds
test, which required the defendant to show that
they had acted responsibly (i.e. to the standard
of responsible journalism) and requires the
defendant to show they “reasonably believed
that publishing the statement complained of
was in the public interest” (s4(1)(b)).

5) Offer of Amends (5) Offer of Amends

The common law position is unchanged by the The common law position is unchanged by the
Defamation Act 2013. Defamation Act 2013.

(6) Innocent dissemination (6) Innocent dissemination

A defendant who innocently disseminates a Section 10 of Defamation Act 2013 also
defamatory statement of another will not be strengthens the position of “innocent
liable if she did not know and had no reason to disseminators”. A party who is not the author,
believe that the statement contained editor or commercial publisher is protected
defamatory material. This was put on a from being sued for defamation unless it is not
statutory footing in s1 of the Defamation Act “reasonably practicable” to bring an action
1996. against the author, editor or commercial
publisher.
Though it is unclear as yet how this affects
common law liability in relation to foreseeable
republication.
OPERATORS OF WEBSITES
A website operator will not be liable for Section 5 of the Defamation Act 2013 puts the
defamatory statements posted on it by others common law on a statutory footing, in a new
provided they take them down when they are defence which provides that “where an action
notified that they are defamatory (Tamiz v for defamation is brought against the operator
Google [2013]) of a website in respect of a statement posted on
the website It is a defence for the operator to
show that it was not the operator who posted
the statement on the website”.
 However, the effect of this defence is limited
by section 5(3) which states the defence does
not apply if the claimant is able to show:

1. it was not possible for the claimant to

identify the person who posted the
statement,
2. the claimant gave the operator a notice
of complaint in relation to the
statement, and
3. the operator failed to respond to the
notice of complaint in accordance with
any provision contained in regulations.

The Defamation (Operators of Websites)

regulations 2013, which came into force in
January 2014 set out the procedures which
operators must follow if they wish to rely on
this defence. In essence, these require the
operator to either hand over the details of the
poster to the complainant (with the poster’s
consent) or to remove the offending
publication within a stipulated timeframe.

The defence is also defeated by malice on the

part of the operator (section 5(11)).

During the passage of the Defamation Act, it

was stated that s10 does not apply to website
operators as that would defeat the purpose of
section 5.

Section 13 provides a new remedy so that

when a court finds a given statement
defamatory the court may order “the operator
of a website on which the defamatory
statement is posted” or “any person who was
not the author, editor or published of the
defamatory statement” to remove it or stop
distributing it.

CONCLUSION

The Defamation Act 2013 is a relatively short act. Having taken the trouble to clarify, codify
and modify some of the key defences, it is somewhat frustrating that the Act does not seek to
fully codify the existing law by setting out when a statement is defamatory, making provisions in
relation to meaning, addressing other common law defences and incorporating the remaining
statutory provisions. The Act’s well-intentioned codification could have the opposite effect.
Rather than clarifying the existing law, the courts may have to look at old issues afresh in light of
new statutory wording. Litigants, prospective litigants and lawyers may be entering a period of
uncertainty in relation to some areas. On the whole, the Act leans in favor of freedom of speech,
but not to the degree that some would have wanted.