Defamation

What is defamation?

A statement that lowers a person in the eyes of right-thinking people, is published to a third party, and identifies the claimant.

What are the three elements of defamation?

1) Publication in a permanent form, 2) Identification, 3) Defamatory meaning.

What counts as publication?

Communication to at least one third party; includes online, social media, broadcast.

How is identification established?

Whether it would reasonably lead to people to believe she/he was the person referred to through inference or innuendo

Whether it would reasonably lead to people to believe she/he was the person referred to

claimant does not have to be named in what was published

What is meant by “defamatory meaning”?

A) Lower the claimant’s reputation, B) Expose them to hatred, ridicule, or shunning. C) disparage their business or profession

What is the “serious harm” requirement?

The statement must be likely to cause serious harm to the claimant’s reputation (Lachaux v Independent 2019).

Difference between libel and slander?

Libel = permanent form (print, online, broadcast); Slander = transient (speech).

What is malicious falsehood?

False statements about property/business causing economic loss, requiring malice.

Who can sue for defamation?

Any living individual, companies (if limited criteria met), sometimes partnerships.

What must the claimant prove?

Publication, identification, defamatory meaning, and serious harm.

What is the defence of truth? Section 2

Statement is substantially true on the balance of probabilities; full defence even if minor inaccuracies.

Only need to prove true the most serious claim/allegation

Clarke vs the Guardian

What is the defence of honest opinion? Section 3

1. Must be an honestly-held opinion

2. Must be recognisable as comment or opinion

3. Must be based on provably true facts or privileged material

4. Must indicate the fact of information on which it is based

All requirements must be met — protection for reviews and privileged material from court/Parliament

Case study: Elton John and Marina Hyde

What is the public interest defence? Section 4

Statement is in the public interest; defendant reasonably believed publication was responsible (Defamation Act 2013

What is absolute privilege?

Complete freedom of speech, protection in Parliament, courts, official reports.

(e.g., court proceedings) - summary of both sides, no substantial inaccuracies, equal weighting for the day

How to avoid defamation in a court proceedings

Report charges and names accurately

Comments made from the public gallery are not protected

Attribute all quotes

Publish contemporaneously: 3 days

A court report is fair and accurate if:

1. It presents a summary of the cases put by both sides

2. It contains no substantial inaccuracies

3. It avoids giving disproportionate weight to one side

4. All allegations must be attributed to be accurate

5. No protection if paper wrongly identifies someone as the defendant someone who is only a witness or unconnected with the case

6. Get the charge or charges right!

7. Don’t say the defendant has been convicted when they have been acquitted

What is qualified privilege?.

Protection if report is fair/balanced, accurate, contemporaneous, without malice

Public documents have qualified privilege even if they’re wrong

What is covered in QP?

1. Local enquiries

2. Public meetings

3. Press conferences about matters of public interest

4. Statements issued by police

5. Press releases issued for the public by councils etc

6. UK council or council committee or sub-committee meetings.

Qualified privilege requirements:

Laid out in Schedule 1 of Defamation Act 1996

1. Fair and accurate

2. Without malice: include a summary of both sides, can’t publish what you know is untrue

3. In the public interest

4. Doesn’t have to be contemporaneous

Case study: Qadir v Associated Newspapers Ltd.

Qualified Privilege Part 1: covers statements without explanation or contradiction applies to?

1. Applies to reports from Parliament, including matter published in Hansard

2. Reports from court (non contemporaneous) publish later but qualified

3. Extracts from court documents or documents open to public inspection, i.e. records from Companies House, the Land Registry or case documents in civil court cases which the Civil Procedure

4. Rules say can be inspected by right - Medical Practitioners Tribunal and police disciplinary panels

Qualified Privilege Part 2 of schedule to Defamation Act: covers Statements subject to explanation or contradiction. Applies to

1. Report of proceedings of general meeting of a UK public company

2. Reports of documents issued to members of a listed company by or with the authority of the board of directors (i.e. regarding appointment, resignation, retirement).

3. Qualified Privilege Part 2: covers Statements subject to explanation or contradiction

4. Applies to council meetings, police statements, press conferences, government bodies, public meetings

5. Any general public meeting.

6. Public inquiries not held under ‘public inquiry’ the Inquiries Act 2005 and non-contemporaneous reports of inquiries held under the Act.

7. Part 2 also includes official (government only) press releases, written and verbal statements by press officers, and official documents – but not leaked ones — even phone calls

8. Findings of associations or their governing bodies, i.e. the British Horseracing Authority disciplinary panel, or an Independent Regulatory Commission of the Football Association .

Requirements for part 2 qualified privilege

1. Must be fair, accurate, without malice and based on a matter of public interest

2. To retain qualified privilege a publisher must publish a ‘reasonable letter or statement’

3. Or ‘explanation or contradiction’ If required to do so by anyone defamed in the report

This is not proactive like ROR

When does QP apply at public meetings/press conferences?

Qualified Privilege applies both to what is said during a meeting as well as to any documents handed out at the meeting, such as press releases or official papers.

Documents officially provided do not need to be read out at the meeting to attract Qualified Privilege

Also established principle that any documents handed out attract privilege as they are part of the proceedings

(So must ensure proper attribution of quotes and the inclusion of any denials made in meetings)

Qualified privilege exceptions

Qualified Privilege does not extend to allegations made before or after a meeting in press releases from residents associations, etc

QP only applies to proceedings of public meetings, official statements, etc.

Anything defamatory said or published outside these proceedings is not covered by the QP defence

What is definition of public meeting?

1. Must be lawful and on a matter of public interest – could be local or national issues

2. Admittance may be restricted or open to the general public

3. The definition of a public meeting – see McNae’s p.320 Case law has ruled that a press conference is the same as a public meeting – and therefore attracts Qualified Privilege

4. McCartan Turkington Breen v Times Newspapers Ltd (2001) – p.321 — Times were severely critical of a meeting which denied the criminal liability of an army private.

According to and satisfaction

Apologies — only if you agree in writing prior to publishing

Leave and licence

Agree to defamatory interview if you agree not to sue

Reader’s comments: unmoderated comments (Section 1 defence, 1996 Act)

Applies to anyone who is not author, editor or publisher of a defamatory statement

Must show reasonable care taken, an that publication did not know nor had reason to know a defamatory statement had been made

Applies to broadcasters for ‘live’ defamation and to ISPs / website operators (websites which provide a service as ‘host’ to enable people to publish their own content on their websites

Readers’ comments: Protection under Regulation 19 of the Electronic Commerce (EC Directive) Regulations 2002 and Section 5 of the Defamation Act. (Website opérateurs)

Section 5 of the 2013 Act provides a defence for website operators who can show that they did not post the relevant material on their website. BUT this fails if they had received a complaint about the material but failed to respond.

*Remember to use the Regulation 19 defence you must remove the libellous comment ‘expeditiously’

How does the Rehabilitation of Offenders Act 1974 affect defamation reporting?

Spent convictions generally cannot be reported as fact; inaccurate reporting may be defamatory.

Lachaux v Independent (2019) – key point?

Clarified “serious harm” requirement for defamation; likelihood of serious reputational damage must be shown.

Monroe v Hopkins (2017) – key point?

Social media post can be libel; repetition counts as publication.

Branson / space lottery case – key point?

Opinion (imputing improper motives) protected under honest comment; must be fact-based and fairly held.

Nurse case (investigation for patient deaths) – key point?

Reporting ongoing investigations must be neutral; “is probed for 18 deaths” implies guilt → potentially defamatory.

Is “is being questioned” defamatory?

Usually not — neutral, factual; does not imply guilt.

Difference between factual statement & opinion?

Opinion = recognisable as opinion, not asserting fact; can be critical.

What is imputing improper motives?

Suggesting someone acted dishonestly or selfishly; opinion allowed if fair + fact-based.

Lord Nichols reasonable publication factors – exam principle?

Judges assess if journalist acted responsibly: verified facts, sought comment, fair & balanced, distinguished opinion/fact.

Scenario: Local paper says teacher is sacked for fraud. Risk?

• Defamation risk: Yes — statement implies dishonesty (fraud = criminal offence).

• Claimant: The teacher (named or identifiable).

• Defences?

  • Truth (if proven in court records).

  • Qualified privilege (if based on accurate, contemporaneous court report).

• Exam safe line: “Only publish if you can prove fraud conviction or if accurately reporting proceedings. Otherwise, high risk.”

Scenario: Facebook post accuses councillor of corruption. Risk + defence?

• Defamation risk: Yes — corruption implication lowers councillor in public eyes.

• Defences?

  • Truth (must prove corruption — difficult).

  • Honest opinion (if clearly comment, based on true facts like expenses scandal).

  • Public interest (if responsible reporting, but must show reasonableness).

• Exam safe line: “High defamation risk unless you can prove corruption or phrase it as clearly marked opinion based on verifiable facts.”

Scenario: Newspaper writes “Branson seems motivated more by publicity than science.” Defamation?

• Risk: Could impute improper motives.

• Defence: Honest opinion — recognisable as opinion, based on true facts (his public lottery project), fairly held, no malice.

• Exam safe line: “Protected as opinion under honest comment; not defamatory fact.”

Scenario: Reporting spent convictions. Safe wording?

• Risk: Reporting a conviction that is legally “spent” under Rehabilitation of Offenders Act → defamatory because it implies criminality that law says is “wiped.”

• Safe practice: Do not publish spent convictions unless reporting current legal proceedings where disclosure is legally permitted.

• Exam safe line: “Cannot report spent convictions as fact; risk of defamation.”

Scenario: Reporting ongoing investigation → how to avoid defamation?

• Risk: Saying “X is probed for 18 deaths” suggests guilt → defamatory.

• Safe practice: Neutral, factual reporting:

  • “Police are investigating the deaths of 18 patients. Nurse X has been questioned.”

  • Distinguish between being investigated and being guilty.

• Exam safe line: “Must stick to neutral, accurate wording: report fact of investigation, not guilt.”