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For many people, their personal reputation or the reputation of their business is of the utmost importance. When something happens to damage that reputation, it can have devastating consequences. Defamation (of a person or of a business) can come in two forms, slander or libel. Defamation online is particularly widespread and is a growing problem.
What is libel?
First and foremost, libel is a statement made in writing or in permanent form, which is untrue, and which causes serious harm to your reputation. Libel can occur in statements made:
- online, including tweets, posts on Facebook, business reviews, blogs or articles;
- in videos streamed online such as on YouTube or TikTok;
- in newspapers or magazine articles;
- on leaflets, minutes of meetings, or other such documents;
- on the radio; or
- on television or in films.
The libel has to be published, if you want to bring a claim. The untrue words or statement must be published to at least one third party. This means it would not be libel if someone sent you an email or message which contained information about you which was untrue, unless that email or message had been copied to someone else. The wider the publication, the higher the level of compensation is likely to be, as the more harm will have been caused to your reputation.
The law will not infer that a statement has been published just because it appears on the internet. This means that if the untrue statement has been made about you online, you should screenshot it and any reactions or responses to it (such as re-tweets, comments, likes or shares) so that you can prove that the libel has been read by third parties.
A statement is libellous if it:
- lowers you in the minds of right-thinking members of society;
- disparages you in your trade, business or profession;
- exposes you to hatred, ridicule or contempt; or
- causes you to be shunned or avoided.
Libel against an individual and libel against a business require different evidence of the harm caused, if the claim is to be actionable:
- If you bring a claim for libel as an individual, you have to prove that serious harm has been, or is likely to be, caused to your reputation by the untrue statement.
- Claims for libel on behalf of a business are often more difficult to bring, as there is a requirement for the claimant to prove that the business has suffered serious financial loss as a result of the libel, as well as serious harm.
Some types of libel are actionable without you having to prove that actual serious harm has been caused to your reputation. For example, if you were accused of committing a serious crime, such as being violent, or being a paedophile, the allegation could be considered to be so serious, that the court would be likely to infer that serious harm had been caused.
Starting a claim for libel
If you think that you have suffered serious harm to your reputation because of a libel, it is important to take action as quickly as possible, as you have only one year from the date of the publication of the untrue statement to start court proceedings. This is called the limitation period. Exceptions will only be made to this strict limitation period in rare circumstances and only with the permission of the court.
If you have a claim for libel, it is important that you start your claim off properly, by using the Pre Action Protocol for Media & Communications Claims. The Protocol requires claimants to send a letter of claim to a defendant, setting out everything they need to know about the claim, and the defendant then has a period of time in which to respond.
In some cases, the dispute will be settled under the Protocol procedure, but in other cases Court proceedings need to be issued.
There are strict rules about where claims can be started, and only the High Court has jurisdiction to deal with defamation claims. If you start a libel claim in the County Court, it could be struck out if you cannot get it transferred to the High Court.
Defences to a libel claim
There are certain classes of libel which cannot be actionable, under the Defamation Act 2013. Typically this covers statements which are made to the police, or statements which are made in the course of court proceedings, whether in writing or in oral evidence before the court. This is known as the defence of "absolute privilege".
A defendant can say in response to a claim, that the statement about you is true. If they can prove this, then the claim will fail.
A defendant can also say that the statement was their honest opinion. They can only rely on this if the statement they made set out the basis of their opinion, and it was a reasonable opinion for them to hold.
Another technical defence, is the defence of "qualified privilege". If the untrue statement was made in an official context, such as in a letter from a GP, the minutes of a Parish Council meeting, in the course of an investigation by an employer, or by a social worker, the qualified privilege defence would mean the claim was likely to fail. It is possible to defeat a defence of qualified privilege, if you can prove to the court that the person who made the untrue statement about you, did so maliciously. This means that genuine mistakes will not be actionable, but if someone made a statement about you in an official context which they knew was not true, you could still bring a claim.
There are other types of libel which may not be actionable because of the circumstances in which the statements were made, but this will depend on the individual facts of each case. You will need advice to confirm whether the libel against you is actionable or not.
Remedies for libel
If you bring a successful claim for defamation, there are various remedies that the court can award. The main remedies are:
- Damages, or financial compensation. The trial judge will decide how much the defendant should pay to the claimant to remedy the harm the defendant has caused to the claimant's reputation.
- The court can also impose an injunction on the defendant, to prevent them from making the untrue statements again in future. If an injunction like this is breached, the defendant could be sent to prison.
- The Defendant can also be required to make a statement in open court, which would confirm that what they said was untrue.
If your claim for defamation is successful, it is also likely that the court would order the defendant to pay your costs, or at least a high proportion of the legal costs you have incurred. The costs involved in bringing a claim for defamation can be high, particularly if you get all the way to trial. This is a good reason to seek legal advice at as early a stage as possible, to try to resolve the dispute quickly.
We understand that it can be difficult for clients to access justice, now that legal aid has all but disappeared. For this reason, we are happy to offer clients with strong cases flexible funding arrangements, which can include no win no fee (conditional fee) arrangements in appropriate cases. We will need to assess each case on its merits and advise you whether your case is suitable for a no win no fee arrangement.
Too late for a libel claim?
If your matter is not suitable for a libel claim, for example if you are beyond the limitation period, you may still be able to stop internet users being able to find unwanted or untrue material about you. This is something that we are able to help you with, via our right to be forgotten service.
What to do next
Libel is a highly specialist area of law, and requires the advice of an expert from the outset. What constitutes libel is constantly changing, particularly because of the widespread use of social media and developments in the law as to what constitutes serious harm.
At Samuels Solicitors, we have a wealth of experience in bringing and defending libel claims for our clients. We act for clients from all over England & Wales.
Contact us today for a no obligation, free initial discussion about how we can help.
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In this week's decision, the Supreme Court ruled that the publications in The Sun were substantially true.04/11/2020
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