Elements of Defamation

Aim

Protect C's reputation from serious harm caused by D's statements. Defences are paramount — always consider alongside elements.

Key statutes

Defamation Act 2013 (DA13); Defamation Act 1996 (DA96); Human Rights Act 1998 (Art 10 ECHR)

Who can sue?

Individuals (living only)	Always
Corporations	Only if serious financial harm likely (DA13 s1)
Public bodies / political parties	Cannot sue

Youssoupoff v MGM Pictures

Brings C into hatred, ridicule or contempt / makes C shunned and avoided.
Defamatory Statement - Meaning of 'defamatory'

Sim v Stretch

Lowers C in the estimation of right-thinking people generally.
Defamatory Statement - Meaning of 'defamatory'

Berkoff v Burchill

Mere insults usually insufficient; context and purpose matter.
Defamatory Statement - Meaning of 'defamatory'

Stocker v Stocker [2019 UKSC]

Judge takes the most plausible meaning for an ordinary recipient. Context is central (Facebook post read differently from newspaper article).
Defamatory Statement - Determining meaning (single meaning rule)

Innuendo rule

if defamatory only with special knowledge, C must prove publication to recipients who had that knowledge.
Defamatory Statement - Innuendo rule

Cassidy v Daily Mirror

Publication had defamatory innuendo — implied wife was not lawfully married
Defamatory Statement - Innuendo rule

Lewis v Daily Telegraph

Saying someone is under fraud investigation implies suspicious behaviour.
Defamatory Statement - Innuendo rule

Serious harm

DA13 s1

Lachaux v Independent Print Ltd [2019 UKSC]

Rule: A statement is not defamatory unless it has caused, or is likely to cause, serious harm to C's reputation (s1(1) DA 2013). For companies, serious harm means serious financial loss (s1(2)).

s1 is a "significant amendment." C must demonstrate as a fact that serious harm resulted — not merely that the words were inherently capable of causing harm. The old common law presumption of damage no longer suffices.

• Factors courts consider:

• Extent of publication (reach and readership)

• Identity / prominence of C

• Gravity of the imputation

• C's existing reputation in that area

• Evidence of actual consequences (lost work, witness evidence, social exclusion)

Not sufficient alone: bare publication; words merely capable of defaming; C's own hurt feelings.
Defamatory Statement - Serious harm — DA13 s1

Jameel v Dow Jones / Thornton v TMG

Courts had introduced a minimal seriousness threshold pre-DA13. Lachaux raised this bar significantly.
Defamatory Statement - Serious harm — DA13 s1

Hulton v Jones; Newstead v London Express

D need not intend to refer to C
Referring to C

O'Shea v MGN

sufficient if a reasonable reader understands statement as referring to C.

Referring to C

Newstead

Risk of referring to multiple people with same name falls on publisher.
Referring to C

Knuppfer

Group defamation — C must show statement was said specifically of C.
Referring to C

Riches v NGN

Wide group = very difficult; small, identifiable group  — possible.
Referring to C

Pullman v Hill

Must be communicated to at least one person other than C or D.
Referring to C

Lachaux - Publication

Mode broadly construed: oral, written, social media
Referring to C

Wennhak v Morgan

No communication between spouses
Referring to C

Theaker v Richardson

Unintended publication actionable if reasonably foreseeable
Referring to C

Lachaux - Damage

Libel (permanent): irrebuttable presumption of damage — injury to reputation + feelings
Slander (transient/oral): no presumption; C must prove special damage unless DA13 s14 applies (crime, dishonesty, fitness for profession)

Defences - Truth

(DA13 s2) Statement substantially true, Burden on D

Defences - Honest Opinion

(DA13 s3)

Statement of opinion; D held it; indicated basis; honest person could have held it, Joseph v Spiller; BCA v Singh

Defences - Absolute Privilege

Full immunity — parliamentary, judicial, ministerial, A v UK (ECHR)

Defences - Qualified Privilege

Duty-interest relationship; lost if malice, Horrocks v Lowe; Reynolds; Watt v Longsdon

Defences - Public Interest

(DA13 s4), Statement on matter of public interest; D reasonably believed publication in public interest, Serafin v Malkiewicz [2020 UKSC]

Defences - Innocent Dissemination

(DA96 s1), Non-author/publisher; took reasonable care; no reason to believe defamatory

Defences - Offer of Amends

(DA96 ss2-4), Suitable correction + apology + compensation

Horrocks v Lowe

Qualified privilege applies even if statement injurious and unreasonable if D truly believed it. Malice = dominant improper purpose.

Qualified Privilege in Detail

Reynolds v Times Newspapers

Duty-interest test: person to whom statement is made has special interest in the honestly held views. Public interest in frank and uninhibited communication. Reciprocal duty/interest required.
Qualified Privilege in Detail

Watt v Longsdon

C's employer told director about C's conduct (qualified privilege ✓) but then told C's wife (qualified privilege ✗ — no reciprocal duty).
Qualified Privilege in Detail

Serafin v Malkiewicz [2020 UKSC]

DA13 s4 replaces Reynolds checklist as an absolute requirement, but Reynolds factors remain relevant to whether D's belief was reasonable. Test: (i) matter of public interest? (ii) D believed publication in public interest? (iii) Belief reasonable?

Libel vs slander — damage and the slander per se exceptions

Libel (permanent/written form): once s1 serious harm is established, further damage to reputation and feelings is presumed — C need not itemise losses.

Slander (oral/transient form): C must prove special damage (actual, usually pecuniary, loss) — unless a per se exception applies.

Slander per se exceptions (no special damage needed):

• Words imputing a criminal offence punishable by imprisonment (common law)

• Words imputing unfitness for trade, profession, or calling (s2 Defamation Act 1952, preserved by DA 2013)