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Defamation legal advice

Defamation legal advice

Our lawyers answer questions about defamation law in the UK

Below are some of the most common questions clients have asked us concerning defamation law in the UK. Remember, the intricacies of defamation law can be complex, and anyone dealing with such issues should seek advice from a legal professional who is familiar with the facts of their specific case to understand their rights and potential actions fully.

How much does a defamation case cost in the UK?

Is defamation illegal in the UK?

How do I prove defamation in the UK?

What are the defences for a defamation claim in the UK?

How do I prove defamation UK?

What is the legal test for defamation?

Is it easier to win a defamation case in the UK?

How long does it take to get a defamation case in the UK?

Can you go to the police about slander in the UK?

Who Cannot sue for defamation in the UK?

Who has the burden of proof for slander UK?

What counts as defamation UK?

Why is it hard to win a defamation case?

is it possible to bring a defamation claim in the small claim court?

How much does a defamation case cost in the UK?

The cost of a defamation case in the UK can vary greatly depending on various factors, such as the nature and complexity of the case, the length of time it takes to complete, and the individuals involved. For straightforward cases, it may cost under £5,000 if the situation can be resolved with a detailed letter before legal action. The defamation cease and desist letter before legal action would effectively pre-empt any realistic chance for the respondent to defend their defamatory actions. Investing in a well-drafted letter before legal action can be worthwhile, as it may lead to an early settlement without the necessity for protracted and expensive legal proceedings. However, for complex defamation cases, the costs could escalate to £50,000 or more.

The complexity of a case can arise from intricate legal issues and a large volume of evidence. Simultaneously, some cases might seem straightforward, but they might involve a difficult respondent who chooses to represent himself. Legal proceedings against a litigant in person (someone who represents themselves without a lawyer) can often increase costs, as the court expects the claimant to comply with procedural matters, which under normal circumstances would be shared between both parties. It's essential to bear in mind that these are broad estimates and actual costs can vary. Always consult with a legal professional for accurate information related to your specific circumstances.

Defamation Details Legal Advice FAQ

The cost of a defamation case in the UK can be influenced by several factors, including the complexity of the legal issues involved, the volume of evidence to be examined, and the duration of the proceedings. Straightforward cases might cost under £5,000 if resolved through a detailed letter before legal action, while more complex cases involving difficult respondents or litigants in person could escalate costs to £50,000 or more. Costs can vary significantly, so consulting with a legal professional for an accurate estimate based on your specific situation is crucial.

Defamation in the UK is not classified as "illegal" in the criminal sense but is considered unlawful within civil law. This means individuals can face civil lawsuits if they make defamatory statements, leading to potential consequences such as injunctions or compensation awards. However, if defamation reaches the threshold of harassment, it might then involve criminal law, potentially making it an "illegal" act subject to police involvement and criminal penalties.

To prove defamation in the UK, a claimant must demonstrate that a statement was defamatory, referred to them, was published to a third party, and caused or is likely to cause serious harm to their reputation. Businesses must also show potential or actual serious financial loss. Additionally, claimants must overcome any defences the defendant might raise, such as truth, honest opinion, or privilege. Each case's specifics greatly influence the ability to prove defamation, underscoring the importance of legal expertise in these matters.

Defences against a defamation claim in the UK include truth, where the defendant proves the statement was true; honest opinion, showing the statement was an expression of their genuinely held opinion based on facts; privilege, either absolute for certain protected communications or qualified for statements made in the public interest; and innocent dissemination, for those unknowingly spreading defamatory content without negligence. These defences highlight the balance between protecting reputations and upholding freedom of expression.

Bringing a defamation claim in the UK involves several stages, starting with a pre-action letter and potentially moving through pleadings, evidence gathering, and a trial. The entire process can vary in duration from around a year for simpler cases to several years for more complex ones. Factors affecting the timeline include case complexity, parties' willingness to settle, and court schedules. Given defamation law's complexities and the varied timeframes involved, seeking timely legal advice is essential for anyone considering a defamation claim.

Is defamation illegal in the UK?

While the term "illegal" usually refers to actions that are prohibited by law and can result in criminal penalties, defamation in the UK doesn't strictly fall under this category. In other words, defamation is not a criminal act in the UK, and therefore, it isn't considered "illegal" in the traditional sense. However, defamation can be considered unlawful, meaning that it can lead to civil legal consequences.

If a person defames someone else, they can be taken to a civil court, where the claimant could potentially win an injunction, compensation, and other remedies. It's important to note, though, that in some cases where defamation is published with an intention to harass the victim, the situation can be viewed differently.

If the defamatory activities meet the threshold for harassment, this can potentially involve criminal law. In such a scenario, the police could take legal action against the person committing the defamation, making it a criminal, hence "illegal", act. You can read more here about online defamation and harassment.

How do I prove defamation in the UK?

If you believe you've been defamed in the UK, you'll need to prove several key elements to establish your case. Here's what you need to demonstrate:

  • The statement was defamatory: The comment or material must lower you in the estimation of right-thinking members of society. This means that it negatively affects your reputation in a substantial way. You can read more here about how the court works out a defamatory meaning of a publication. 
  • The statement caused or is likely to cause, ‘serious harm’ to you: Introduced with the Defamation Act 2013, the 'serious harm' requirement means that the statement must have caused or will likely cause significant damage to your reputation. If you're a business, you must also prove financial loss.
  • The statement refers to you: You need to show that the defamatory statement was about you. It is not always necessary for you to be named; it is enough if you can be identified in some other way.
  • The statement was published: Publication, in the context of defamation, means the communication of the defamatory statement to at least one person other than you. It could be through various means such as speech, writing, or some form of broadcast.
  • There is no lawful justification or other defence: The defendant may try to use defences like truth (the statement was true), honest opinion (the statement was a viewpoint that could be honestly held based on the facts), or public interest (it was in the public interest to make the statement). If these or other defences can't be established, then you'll have a stronger case.

These are complex legal matters, and each defamation case is unique. If you feel you've been defamed, it's recommended that you consult with a legal professional to guide you through the process and help present the strongest possible case.

What are the defences for a defamation claim in the UK?

Defending a defamation claim in the UK involves asserting one of several established legal defences. These defences are based on principles of free speech, fairness, and the public interest. Here are the main defences:

The Defence of Truth:

This is a complete defence to a defamation claim. If the defendant can prove that the statement made about the claimant was true, or substantially true, then this defence will succeed. In UK defamation law, truth is a complete defence to a claim of defamation. This means that if a defendant (the person accused of defamation) can prove that the allegedly defamatory statement they made about the claimant (the person alleging defamation) was true or substantially true, then the defence will succeed and they will not be liable for defamation. Here are the key aspects of this defence:

  • Whole truth or substantial truth: It's important to note that the statement does not need to be entirely true to qualify for this defence. The test is one of substantial truth. This means that if the 'sting' or main substance of the statement is true, even if some minor details are not, the defence can still be successful. For example, if the defendant makes a statement saying that the claimant was convicted of a crime on a specific date, but they got the date wrong, the defence of truth would still apply if the claimant was indeed convicted of the crime.
  • The burden of proof: Unlike some other defences, the burden of proof here rests with the defendant. It's the defendant's responsibility to provide evidence to prove the truth or substantial truth of the statement. This can involve presenting documents, witness testimony, or any other evidence that supports the truth of the statement.
  • No need to prove public benefit or good intentions: The defence of truth doesn't require the defendant to show that their statement was in the public interest or that they had good intentions in making it. The only thing that matters is the truth or substantial truth of the statement.

In summary, the defence of truth provides a robust protection for defendants in defamation cases. However, it's not without its complexities, and it requires careful handling and often detailed evidence. If you're involved in a defamation case and are considering using the defence of truth, it's usually advisable to seek professional legal advice to understand your rights and options.

The Defence of Honest Opinion:

This defence applies if the defendant can demonstrate that the statement was an expression of their honestly held opinion rather than a statement of fact. It must be based on any fact that existed at the time the statement was published or anything asserted to be a fact in a privileged statement. The defence of honest opinion is another crucial defence in UK defamation law. The goal of this defence is to protect freedom of speech and to allow for the expression of opinions that may be critical or harsh, so long as they are honestly held.

To successfully use this defence, a defendant (the person accused of defamation) must meet the following requirements:

  • Statement of Opinion: The defendant must prove that the statement in question was a statement of opinion and not a statement of fact. This can sometimes be a complex task, as it can be difficult to distinguish between fact and opinion in some instances. Usually, it needs to be clear to an average reader or listener that what is being expressed is an opinion.
  • Basis in Fact: The opinion must be based on facts that existed at the time the statement was published. These facts must be indicated in the statement or be generally known. If the basis for the opinion is not clear, the defendant may need to provide additional evidence to show that their opinion was grounded in fact.
  • Honest Belief: The defendant must have honestly held the opinion they expressed at the time of publication. It's important to note that this does not mean the opinion needs to be reasonable, fair, or balanced. Even if others find the opinion extreme, absurd, or highly prejudiced, so long as it's an honestly held opinion, the defence can still be successful.
  • Reasonable Person Test: A reasonable person must be able to consider the statement as an opinion based on the underlying facts.

For example, a restaurant reviewer might make negative comments about a meal they had at a restaurant. If the restaurant owner sued for defamation, the reviewer could potentially use the defence of honest opinion, as long as they could show that their negative comments were based on the actual meal they had eaten, and were not invented or exaggerated beyond what they honestly thought about it. Like all defences to defamation, the application of the honest opinion defence will depend on the specific circumstances of the case. Therefore, if you find yourself involved in a defamation case, whether as a claimant or a defendant, it's advisable to seek professional legal advice.

The Defence of  Privilege (Absolute or Qualified):

Privilege protects certain types of communication from defamation claims. Absolute privilege applies to certain proceedings, such as those in Parliament or in court, where the need for free speech outweighs the potential for defamation. Qualified privilege protects the communication of potentially defamatory statements made in the public interest, provided the communication was not made maliciously.

The Defence of Publication on Matter of Public Interest:

If the defendant can show that the statement was on a matter of public interest and they reasonably believed that publishing the statement was in the public interest, this defence may apply. The defence of privilege is another fundamental aspect of UK defamation law, aimed at balancing the need to protect individuals' reputations with the need for free and frank discussion in certain contexts.

Absolute Privilege:

Absolute privilege offers total protection against defamation claims, regardless of the motive behind the statement. This means that the person making the statement could knowingly say something false or defamatory, and yet not be liable for defamation. Absolute privilege applies to certain proceedings where it is deemed essential that participants can speak openly without fear of legal consequences. This includes:

  • Statements made in the course of parliamentary proceedings, including speeches by Members of Parliament and witnesses giving evidence to parliamentary committees.
  • Statements made in court, or in documents prepared for court proceedings, such as witness testimonies, affidavits, or pleadings.
  • Statements made in certain other legal proceedings, such as public inquiries or disciplinary hearings of professional bodies.

Qualified Privilege:

Qualified privilege offers protection for potentially defamatory statements made in other contexts, where it's considered to be in the public interest that people should be able to speak freely. This can include:

  • Media reports of certain public proceedings or official statements.
  • Statements made by individuals in the performance of a legal, social, or moral duty, such as a reference given by an employer.
  • Fair and accurate reports of public meetings or press conferences.

However, qualified privilege is 'qualified' because it can be defeated if the claimant can prove that the statement was made with malice, meaning the defendant knew the statement was false or acted with reckless disregard for its truth. As with all defamation defences, the specific application of the privilege defence depends on the circumstances of each case. If you're involved in a defamation claim, it's strongly recommended to seek legal advice to understand how these defences could be applied.

The Defence of Innocent Dissemination:

This defence is available to those who, in the course of a business, unknowingly and without negligence, published defamatory material authored by a third party. This could include an internet service provider or a bookseller. The defence of innocent dissemination is particularly relevant in the age of digital communication, where many businesses are involved in the transmission, hosting, or distribution of third-party content.

In UK defamation law, the defence of innocent dissemination is available to individuals or organisations that have, in the course of their business, unknowingly and without negligence, facilitated the publication of defamatory material authored by a third party. This defence is often used by intermediaries such as booksellers, librarians, internet service providers (ISPs), or website operators. These entities may distribute or host vast amounts of content but have limited or no control over its creation. To successfully invoke the defence of innocent dissemination, a defendant must generally show the following:

  1. They did not author or edit the defamatory content.
  2. They were not involved in the decision to publish the defamatory content.
  3. They were not negligent in relation to the publication of the defamatory content.
  4. They did not know, and had no reason to believe, that they were contributing to the publication of defamatory content.

For instance, suppose an ISP hosts a website that contains a defamatory statement posted by a user. In that case, the ISP might be able to use the defence of innocent dissemination if it can prove it had no knowledge of the defamatory content and acted promptly to remove it once notified. However, if it's demonstrated that the defendant ought to have known that the material was likely to be defamatory, or if they failed to take action when the defamation was brought to their attention, they may not be able to use this defence. It's important to note that the specifics of each case can greatly influence the application of the innocent dissemination defence. Given the complexities of defamation law, it's generally advisable to seek legal advice if you find yourself involved in a defamation case.

The Defence of Consent:

If the claimant consented to the publication of the statement, the defendant cannot be held liable for defamation. Remember, the application of these defences will depend on the specific circumstances of each case. If you find yourself involved in a defamation case, whether as a claimant or defendant, it's always wise to seek legal advice. Consent is an absolute defence to a defamation claim. This means that if a person (the claimant) gave their permission for the allegedly defamatory statement to be published, the person who made the statement (the defendant) cannot be held liable for defamation.

The rationale behind this defence is that it would be unjust to allow a person to sue for defamation when they have freely permitted the publication of the statement in question. Essentially, if you've agreed to the statement being made public, you can't then complain about the damage it does to your reputation. The consent must be freely given, and it must be clear that the claimant was fully aware of the nature of the statement when they gave their consent. The defendant would generally need to provide some evidence to demonstrate that they had the claimant's consent.

This defence can apply in various contexts. For example, if a person agrees to an interview for a magazine article or a documentary, knowing that certain potentially defamatory statements about them will be included, they may be considered to have consented to the publication of those statements.

However, the application of the consent defence, like all defences to defamation, will depend on the specific circumstances of each case. For instance, the scope of the consent and the context in which it was given can all be relevant factors. If consent was obtained through deception or under duress, it may not be valid.

What is the legal test for defamation?

In the realm of defamation laws, it's important to clarify that there isn't a strict "test" as such, particularly given the varying laws across different jurisdictions. However, in the UK, establishing defamation involves satisfying several critical elements as per the Defamation Act 2013.

For a statement to be legally considered defamatory, its publication must have resulted in or have a likelihood to cause significant harm to the reputation of the claimant. The statement must essentially lower the claimant in the estimation of right-thinking members of society, cause them to be shunned or avoided, or expose them to hatred, ridicule, or contempt. The statement must also refer to the claimant and have been published to a third party. This means it must have been made known to someone other than the person making the statement and the person the statement is about. If the claimant is a trading corporation, it must also prove that the statement has caused, or is likely to cause, serious financial loss.

Moreover, the claimant must be able to overcome any defences the defendant might raise, such as truth, honest opinion, or privilege. Therefore, rather than a single legal 'test', proving defamation involves satisfying these interconnected elements.

Defamatory Statement:

In the process of a defamation case, the initial step entails demonstrating that the statement under scrutiny is indeed defamatory. A defamatory statement holds the potential to inflict harm on the reputation of an individual or a corporation. This could be brought about in various ways.

For example, the statement might incite feelings of hatred, ridicule, or contempt towards the person or entity to which it refers. This could lead to a situation where the individual or corporation is shunned or avoided by others due to the negativity associated with the statement. Alternatively, a defamatory statement might lower the subject in the estimation of 'right-thinking' members of society.

This can effectively undermine their standing or reputation in their community or industry. Thus, a statement that fulfils any of these criteria can be classified as defamatory within the scope of UK law.

The Statement Refers to the Claimant:

The statement must be about, or refer to, the claimant. It's not necessary for the claimant to be specifically named if they can be identified in some other way. In the context of UK defamation law, establishing that a statement is defamatory is the initial step in the process. A defamatory statement is one which has the potential to injure the reputation of an individual or a corporation. This potential harm could manifest itself in various ways.

For instance, a defamatory statement could expose the person or entity in question to feelings of hatred, ridicule, or contempt from others. Similarly, such a statement might lead to the person or entity being shunned or avoided by others due to the negative image portrayed by the statement. Furthermore, a defamatory statement could lower the individual or entity in the estimation of 'right-thinking' members of society, thereby negatively affecting their standing or reputation. In essence, if a statement fulfils any of these criteria, it can be considered defamatory under UK law.

The Statement has been Published:

The defamatory statement must have been published or communicated to a third party. In defamation law, "published" means that someone other than the person making the statement and the person the statement is about has seen, heard, or read it. 

In terms of defamation law in the UK, the requirement for a statement to be considered published is that it must have been communicated or made available to a third party. This means that the alleged defamatory statement must have been seen, heard, or read by someone who is neither the person making the statement, nor the individual or entity the statement is about.

Essentially, this suggests that the potentially harmful statement has been shared or disseminated in some way beyond the parties directly involved in the statement's creation and its subject. This dissemination could be via various means, such as print, broadcast, or online platforms. The concept of publication in defamation law highlights the fact that defamation involves damage to a person's or entity's reputation in the eyes of others.

Serious Harm:

The claimant must demonstrate that the defamatory statement has caused, or is likely to cause, serious harm to their reputation. If the claimant is a for-profit business, they must also show that the statement has caused or is likely to cause them serious financial loss.

A pivotal aspect of a defamation claim under UK law is demonstrating serious harm. This requires the claimant, or the person alleging defamation, to provide evidence that the defamatory statement has caused or has a likelihood of causing severe damage to their reputation. The idea behind this requirement is to ensure that the courts only deal with cases where substantial damage has occurred, and not trivial matters. Serious harm may manifest in various ways, such as damaging the individual's personal or professional relationships or standing in the community.

When the claimant is a for-profit business entity, there is an additional requirement to demonstrate that the defamatory statement has led to, or there is a high chance it will lead to severe financial loss. This element recognises that for businesses, harm to reputation often translates directly into monetary damage. This could be through loss of clients or customers, decreased business opportunities, or increased costs due to the need to mitigate the damage caused by the defamatory statement.

Once these elements have been established, the burden shifts to the defendant, who might then attempt to avail one of several defences, including truth, honest opinion, privilege (absolute or qualified), and public interest. If a defendant can successfully establish one of these defences, they may avoid liability. 

Is it easier to win a defamation case in the UK?

The difficulty of winning a defamation case can depend largely on the jurisdiction in which the case is brought. The UK and the US, for example, have different defamation laws and standards of proof which can impact the ease or difficulty of winning a case. Defamation Law in the UK vs the US: In the UK, the burden of proof generally falls on the defendant. This means that if someone sues you for defamation, it is up to you as the defendant to prove that your statement was true, or that it is protected by another defence such as honest opinion or privilege.

The UK law also does not distinguish between public and private figures when considering defamation cases, meaning everyone is given the same level of protection. On the other hand, in the US, the burden of proof typically falls on the plaintiff (the one who is claiming defamation). This is especially true when the plaintiff is a public figure, like a politician or a celebrity. In such cases, they not only have to prove that the statement was false and defamatory but also that it was made with "actual malice" - meaning the person who made the statement knew it was false or acted with reckless disregard for the truth.

This can make defamation cases harder to win in the US, especially for public figures. Impact of Trial by Judge vs Trial by Jury: In the UK, defamation cases are usually tried by a judge alone, whereas in the US, they're often tried by a jury. This can impact the outcome of a case, as individual biases can influence judgement. In the UK, a judge, who is a legal expert, makes the decision based on the facts presented and the law. This can provide a more consistent and predictable outcome, but it's also subject to the interpretation and discretion of a single individual. In the US, a jury, typically consisting of 12 ordinary citizens, decides the case.

This means the decision is based on the collective judgement of a group of people, which could arguably be more balanced and less likely to be influenced by a single individual's point of view. However, this can also lead to less predictability, as the decision is more likely to be influenced by the personal experiences and biases of the jurors.

In conclusion, it can be easier to win a defamation case in the UK compared to the US due to the differences in defamation laws, standards of proof, and trial methods. However, each case is unique and the outcome will always depend on the specific circumstances. Anyone dealing with a potential defamation claim should seek legal advice to understand their rights and potential outcomes.

How long does it take to get a defamation case in the UK?

The length of time it takes to complete a defamation case in the UK can vary widely based on several factors. These factors include the complexity of the case, the number of parties involved, the willingness of the parties to settle, the court's schedule, and any potential appeals. However, broadly speaking, a defamation case might progress through the following stages:

  • Pre-action stage: This involves a letter before action, any necessary investigations, and possibly pre-action negotiations. This could take a few weeks to several months.
  • Pleadings stage: This involves the preparation and exchange of formal court documents (Claim Form, Particulars of Claim, Defence, and possibly a Reply). This stage usually takes a few months.
  • Disclosure and evidence stage: This involves the parties disclosing relevant documents to each other and gathering evidence, including witness statements. Depending on the volume of documents and the number of witnesses, this stage could take several months.
  • Trial: The trial itself may last anywhere from a day to a few weeks, depending on the complexity of the case.
  • judgement and possible appeal: The judge may deliver their judgement immediately, or they may reserve judgement to deliver at a later date. If there is an appeal, the process can extend for several more months, and possibly longer.

In total, from the start of proceedings to judgement (excluding any appeal), a defamation case in the UK could take anywhere from about a year to several years. It is important to note that these are general time frames and each case is unique. Legal advice should be sought for an estimation tailored to a specific case. It's also worth mentioning that you typically have one year from the date of publication of the defamatory statement to bring a defamation claim, according to the Defamation Act 2013. However, courts have the discretion to hear cases brought outside this period if they consider it just and equitable to do so.

Can you go to the police about slander in the UK?

In the UK, slander and defamation more broadly are typically civil matters rather than criminal ones. This means that the police do not usually get involved in cases of slander. Instead, the person who believes they have been defamed would typically seek legal advice and possibly bring a claim in the civil courts. However, there could be circumstances where a defamatory statement could also involve criminal behaviour.

For instance, if the statement is part of a campaign of harassment, or incites violence or hatred based on race, religion, or other protected characteristics, then it might be a criminal offence and you could report it to the police. Also, under the Communications Act 2003, it's an offence to send a message that is grossly offensive or of an indecent, obscene or menacing character over a public electronic communications network (which includes social media).

So, if the slanderous statement fits these criteria, it could potentially be a matter for the police. Nevertheless, in most cases, slander and defamation are dealt with through the civil courts. If you believe you've been defamed, it's usually recommended that you seek legal advice to understand your rights and the best course of action.

Who Cannot sue for defamation in the UK?

  1. Dead people: One of the fundamental principles in defamation law is that a claim must be brought by a living person. The dead cannot be defamed, and their estate or family members cannot sue for defamation on their behalf.
  2. Government bodies: Government bodies, including local authorities and governmental departments, are not permitted to sue for defamation in the UK. This is based on the principle established in the 1993 case of Derbyshire County Council v. Times Newspapers Ltd, which found that it was contrary to the public interest for governmental bodies to sue for defamation.
  3. Trade associations: Trade associations are typically not permitted to sue for defamation on behalf of their members, unless they can demonstrate that the defamatory statement caused them, as an organisation, serious financial loss.
  4. Companies: Companies can bring a defamation claim, but under the Defamation Act 2013, a company must show that the defamatory statement has caused, or is likely to cause, serious financial loss.

Who has the burden of proof for slander UK?

In the UK, in a slander or defamation case, the burden of proof primarily falls on the defendant (the person accused of defamation). This means the defendant must demonstrate that their statement falls under one of the defences to defamation, such as truth, honest opinion, absolute or qualified privilege, or that the statement was in the public interest.

However, this does not mean that the claimant (the person who alleges they have been defamed) has nothing to prove. The claimant has the initial burden of establishing that: The statement was defamatory. The statement referred to them. The statement was published to a third party.

The statement has caused or is likely to cause serious harm to their reputation (if the claimant is a business, they must prove serious financial loss). Moreover, in some cases, the defendant may raise a factual defence where the claimant may need to provide evidence to the contrary. For example, if the defendant raises a defence of truth, the claimant may need to demonstrate that the statement was indeed false. Additionally, if a claimant brings a claim for malicious falsehood - where they must prove that a false statement was made maliciously that caused them damage - the burden of proof is on the claimant. Often, legal action for defamation against online reviewers will also involve a claim for malicious falsehood

What counts as defamation UK?

Defamation in the UK is defined by making a false statement that harms the reputation of an individual or a corporation. The false statement must be made to a third party, meaning someone other than the person defamed must have seen, heard, or read it. There are two types of defamation:

Libel:

This refers to a defamatory statement that has been published in written form, or in a form that has some degree of permanence, such as a tweet, a Facebook post, a newspaper article, or a TV broadcast.

Slander:

This refers to a defamatory statement that is spoken or in a non-permanent form. Under the Defamation Act 2013, a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant. For a claim to be considered as defamation in the UK, the following elements typically need to be proven:

  • The statement was defamatory.
  • The statement referred to the claimant.
  • The statement was published to a third party.
  • The statement has caused or is likely to cause serious harm to the reputation of the claimant.
  • If the claimant is a corporate body, they must also show that the statement has caused or is likely to cause them serious financial loss. If these elements are satisfied, then the statement could be considered as defamation. However, there are also several defences available, including truth, honest opinion, absolute or qualified privilege, public interest, and others.

Why is it hard to win the defamation case?

Winning a defamation case can be challenging due to several factors:

  • Burden of proof: In defamation cases, the claimant (the person who claims they were defamed) must establish several elements to win their case. They must prove that the statement was defamatory, that it referred to them, that it was published to a third party, and that it has caused or is likely to cause serious harm to their reputation. For businesses, they must also show serious financial loss. Each of these elements can be complex and challenging to prove, making it hard to win the case.
  • Substantial truth: Under UK law, truth is a complete defence to a defamation claim. What's more, the statement only needs to be substantially true, not wholly true. If the defendant (the person accused of defamation) can prove that the 'sting' or main substance of their statement is true, they may win the case, even if some minor details are inaccurate or false. This aspect can make defamation cases especially difficult for claimants.
  • Honest opinion: Another possible defence is honest opinion. If the defendant can show that their statement was a genuine expression of their opinion, based on facts that existed at the time and were either referred to in the statement or widely known, they might be able to use this defence. This can make winning a defamation claim more difficult, as it requires the claimant to demonstrate that the defendant did not honestly hold the opinion they expressed.
  • Public interest and privilege: Statements that are in the public interest or made in certain privileged situations, such as in Parliament or in court, may also be protected. These defences can make it harder for claimants to win defamation cases.
  • Belief in the truth: If a defendant genuinely believed that the statement they made was true at the time of publication, this can influence the case. Even if the statement is later found to be false, the defendant's belief in its veracity can be a relevant factor.
  • Costs and stress of litigation: Litigation can be expensive, time-consuming, and stressful. The costs involved in bringing a defamation case, especially if it proceeds to trial, can be substantial. Even if a claimant has a strong case, the cost and stress of litigation can deter them from pursuing their claim to conclusion.
  • Potential for Streisand Effect: The "Streisand Effect" refers to the phenomenon where attempting to suppress information can inadvertently lead to greater publicity for that information. In the context of a defamation case, this means that suing for defamation can sometimes draw more attention to the defamatory statements, causing further reputational harm. Given these challenges, it's generally advisable for anyone considering a defamation claim to seek professional legal advice.

is it possible to bring a defamation claim in the small claim court?

Yes. But only in exceptional cases. The so called small claim court is effectively part of the county court. Currently defamation claims need to be issued in the High Court, unless the parties agree to give the county court jurisdiction in their dispute under section 18 of the County Courts Act 1984. Section 15 of the same Act provides that the county court does not have jurisdiction to hear and determine any defamation action.

A claim can only be transferred to the county court by the High Court under section 40 of the 1984 Act. A defamation claim A claim can then find its way to the county court only if it is transferred there, by the High Court, under section 40 of the 1984 Act. The criteria for transfer of defamation claims from the High Court to the county court are set out under Civil Procedure Rule 30.3, which is a non-exclusive but compulsory list of matters to which the court must have regard.

The transferring court must have regard to the financial value of the claim and the availability of a judge specialising in the type of claim in question. The court must also consider the practical and logistical facilities of competing venues and the importance of the outcome of the claim to the public in general

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Are you a victim of defamation? Time might be of the essence. Call us now for legal advice on +44 207 183 4123 or send a request and we will contact you as soon as possible.

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