Constant communication between directors for affairs such as performance, management strategies and shareholder complaints are frequent and common practice. Even so, written records such as WhatsApp chats, emails, and meeting notes might be seen as defamatory evidence if they include untrue statements that significantly damage a person’s reputation and standing.
Conditions for defamation
A statement can be seen as defamatory if it clearly refers to a person in a context that is harmful to their reputation and is published to at least one third party. For instance, a work group chat message might contain accusations of fraud, bullying, or harassment. Under the Defamation Act 2013, it must be shown that a person’s reputation has suffered “serious harm”. Consequently, demonstrable harm caused by the defamatory remark is required.
Defamation within the company board
In the recent case of Orekoya v Travelodge Hotels Ltd [2024], the High Court determined that intra-company communications do not constitute “publications” in the definition of a defamatory statement, stressing on the distinction between communications in the workplace and “mere idle gossip”. Case law is constantly under development and refinement, therefore this should not be seen as a definition of the scope, but it does suggest the court’s reluctance to interfere with intra-company affairs unless the nature of the correspondence is disproportionately defamatory and unbefitting of a professional setting.
Board communications become at risk of defamation claims when they possess the following qualities:
- Suspicions are stated as facts, where straightforward, accusatory language is used (e.g., saying that someone was dishonest in doing something) instead of phrases such as “there is a concern/allegation of…”
- Disproportionate spread of unverified rumours and broadcasting it to a wide group within the company without real need.
Possible defences and justifications
Firstly and most importantly, if the director has taken steps to verify the truthfulness of the statement, or if it is of an honest and clear belief based on facts, then it is unlikely the statement will be deemed defamatory.
Directors can also rely on qualified privilege. This is where, in certain communications, the sender or recipient has a duty to inform or receive the information. This situation would generally tie into a director’s obligation to the company’s success, requiring them to take reasonable action against threats to operations or growth.
A final point: if the board’s statement gets out, a director could have a valid defence if they reasonably thought publishing it was for the greater public good.
Protecting yourself as a director
- Avoid using vindicative and accusatory language
- Separate facts from opinion
- Document the efforts made to verify pieces of information and allow open conversation if appropriate
At Nath Solicitors we provide legal expert advice on defamation. If you need assistance, please call us on 0203 983 8278 or email us at enquiries@nathsolicitors.co.uk.