If you are facing a defamation claim, think carefully before trying to deal with the matter without legal advice. Defamation law is complicated, and cases in this area run according to strict rules and procedures. Approaching an allegation that you have defamed an individual or a business in the wrong way could prove costly in the long run. In a lot of cases where we act for defendants, we can close matters down relatively swiftly following an initial consultation with you and after speaking to the claimant’s lawyers or drafting a carefully worded letter explaining your position.
The way we handle your case will depend on whether you have one of the established defamation defences available to you. The main defences to a claim of defamation in the UK are set out in The Defamation Act, 2013 (the Act).
We outline these below.
My Comments Were True
Section 2 of the Act states that:
It is a defence to an action for defamation for the defendant to show that the imputation conveyed by the statement complained of is substantially true.
So, if you can show that what you said or published was ‘substantially true’ then any defamation claim brought in relation to your comments won’t succeed. If the parties don’t resolve matters at an early stage, there will usually be a preliminary hearing where a judge will decide what the ‘ordinary and natural’ meaning of the words complained of are. It is against this meaning that the truth or otherwise of the words will be measured. The qualification in the Act of the word ‘true’ with ‘substantially’ is important. Not every single aspect of the comments needs to be true – only what libel judges sometimes refer to as ‘the sting’ of defamation.
Unlike other countries, in the UK it is for the defendant to prove the truth of the complained of words. It is not for the claimant to show they are false. This approach means that the UK is often viewed as being a more favourable area for defamation claimants compared to other jurisdictions around the world.
I Was Giving My Honest Opinion
Section 3 of the Act provides a defence to a defamation claim if the comments complained of were the honest opinion of the defendant. To succeed in this defence several conditions must be met:
- The statement complained of must be a statement of opinion
- The statement complained of must in some way indicate what the basis of the opinion was
- An honest person could have held the opinion because of facts that existed at the time the statement complained of was published
In 2023, in a case involving the television presenter Rachel Riley, the courts have clarified that if the facts cited in support of the ‘honest opinion’ are themselves untrue then the defence of honest opinion will not succeed. Similarly, if the complainant can show that the defendant did not really hold the opinion then the defence won’t succeed.
At its core, the defence of honest opinion is a statutory attempt to protect freedom of speech and to enable the expression of opinions that may be controversial. However, in our experience, it is a difficult defence to sustain given the strict conditions that must be met for the defence to succeed.
The Defence Of Public Interest
The Act states that:
It is a defence to an action for defamation for the defendant to show that—
(a)the statement complained of was, or formed part of, a statement on a matter of public interest; and
(b)the defendant reasonably believed that publishing the statement complained of was in the public interest.
Personal, private matters do not usually come within the ambit of the public interest defence. Note that while the defence of public interest is often used by journalists and others in the media to defend their work, it is a defence that is open to everyone, including individuals who may post something online that becomes the subject of a defamation claim.
Privilege
Certain statements that might otherwise be considered defamatory might be protected by the doctrine of privilege. Essentially, privilege attaches to comments made in circumstances that are protected for public policy reasons and the good of society generally. If a statement is privileged it won’t usually be possible to bring a defamation claim against the individual who published the statement. There are several levels of privilege:
- Absolute privilege – includes comments made during parliamentary proceedings and court proceedings. Reports of court proceedings that meet certain conditions will also attract absolute privilege
- Statutory qualified privilege – The Act protects certain types of reports, including reports of proceedings in public of a legislature or court anywhere in the world. But the reports must be fair, accurate and published without malice
- Common law qualified privilege – This includes comments made in a context where there is what’s been described as a ‘reciprocal relationship’ between the publisher and the recipient or person named or affected by the allegedly defamatory statement. This type of privilege might arise between an employer and employee, teachers and parents or between the police and someone they have asked to respond to inquiries
The Act also includes a defence for website operators who are in certain circumstances protected from being sued for defamatory material that appears on their website. The operator needs to show that they weren’t responsible for posting the material.
How Can We Help?
Here we’ve discussed the main defences to defamation in the UK. But it’s worth noting that defamation law is complex and the defences available vary considerably depending on where a case is brought. In the United States, for example, defamation defendants are widely perceived to find it easier to successfully defend defamation claims than defendants in the UK. And even within the UK rules can vary depending on whether the court is located in England and Wales, Scotland, or Northern Ireland.
At Nath Solicitors we have the experience and deep understanding of the technical aspects of defamation to ensure our advice is relevant, practical and appropriate for your particular circumstances. We have decades of experience handling complex and high-value defamation cases, and we have successfully defended individuals, businesses, and media personalities facing damaging claims of defamation.
Contact Us
For advice on defamation please call us on 0203 983 8278 or get in touch with us online.
