29 June, 2021
In the 21st century, with the advent of social media, it is now easier than ever for people to publicise their thoughts, feelings and opinions and make them largely available to the public. However, publicising thoughts or opinions may have disastrous consequences and may result in someone bringing Court proceedings for defamation.
Defamation concerns the publication of defamatory material, that is, something which adversely affects a person's reputation, and includes the following:
However a defamatory statement is published, the elements required to bring a claim in defamation are the same and has sources in both statute and common law. Further details of what is required to bring a successful defamation claim are covered below.
A claimant in defamation proceedings, whether brought in libel or slander, must prove that the words complained of are defamatory.
There is no hard and fast definition of what constitutes a defamatory statement. The closest thing to a defamation comes from section 1(1) of the Defamation Act 2013, which provides that a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.
In other words, a claimant will be required to prove that the words complained of have caused or are likely to cause serious harm to their reputation.
There are further requirements when it comes to proving serious harm to the reputation of a business which trades for profits, in that the business will be required to show that the words complained of have caused or are likely to cause serious financial loss to the business (section 1(2) of the Defamation Act 2013).
In addition to the statutory requirement to prove that the words complained of have caused or are likely to cause serious harm, the common law requires that a defamation claim involves the commission of a "real and substantial tort".
Generally, if this requirement isn't satisfied, the Court is required to stop defamation proceedings that serve no legitimate purpose and is most likely to strike out such claims as an abuse of process (Jameel v Dow Jones & Co Inc  EWCA Civ 75).
Therefore, if the Claimant cannot show that a claim has a legitimate purpose, then it is likely that the Court will strike the claim out as an abuse of process on the basis that there is no legitimate purpose for the claim or that the defamatory statement was in the nature of abuse or tittle-tattle.
The Claimant must also establish that the words complained of are published to a third party and that the Defendant published or is responsible for the publications of the words complained of.
The Claimant must therefore show that there was a substantial publication and that the publication was not limited in extent, otherwise, it is not likely to have caused serious harm and is likely to be struck out as an abuse of process.
Each communication of defamatory material constitutes a separate publication and technically gives rise to a separate cause of action.
In the case of material available on social media and the internet, the time of publication is the time when the material is accessed or read. Therefore, each time a defamatory post is shared on social media, it constitutes a separate publication of the defamatory statement. However, this does not mean that someone who republishes a defamatory statement is liable for making the statement, rather, the original publisher may become liable for each republication of the defamatory statement.
Therefore, the Claimant will be required to prove the nature and extent of the publication and republication of the defamatory statement in order to bring a successful claim for defamation, otherwise, if there is limited publication, the claim risks being struck out as an abuse of the Court's process.
In defamation actions, the meaning of the words complained of is of the utmost importance.
As the publication will be understood differently by each reader, the Court is usually required to find a single or "right" meaning of the words complained of. When considering the meaning of online material, it is likely that a case may turn on the particular facts present at the time of the publication.
The Claimant will generally be required to prove that the meaning of the words complained of have caused or are likely to cause serious harm. This is done by reference to what the ordinary reasonable reader would understand the words to mean, which may require a specific Court hearing in relation to the meaning of the words complained of.
For more information contact Andrew Wilkinson in our Business Dispute Resolution department via email or phone on 01772 220168. Alternatively send any question through to Forbes Solicitors via our online Contact Form.
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