Defamation and Libel
Defamation is concerned with the publication of lies, or untruths and a defamatory statement is one which lowers the claimant in the estimation of right thinking members of society. Defamation is split into two legal bases that a person can sue for: slander and libel.
Slander is defamation of a person through a transient form of communication, generally speech (including sign language).
Libel is defamation of a person through a permanent form of communication, mostly the written word. However, defamation is not limited to linguistic forms. Other forms of ‘publishing’ include audio recordings, video recordings, photographs, paintings, illustrations; even the use of status and bodily gestures can also be regarded as defamatory.
The claimant must prove in a case of slander that the effect of the defamation has actually been damaging to them. There is no such requirement in a case of libel.
In the case of libel a court will assume that the claimant is of good character and the libel is untrue. The burden of proof is on the person (or publisher) accused of the libel.
The Defamation Act 2013 came into force on 1 January 2014, together with the Defamation (Operators of Websites) Regulations 2013. The purpose is to rebalance the law on defamation to provide more effective protection for freedom of speech while at the same time ensuring that people who have been defamed are able to protect their reputation.
The changes affect HEIs as publishers of content and as potential litigants should their reputation be harmed by false information being published. Of particular relevance to HEIs is that privileged material which is protected from defamation actions is now extended to include:
- Peer-reviewed statements in scientific and academic journals
- so long as certain conditions are met
- Reports of scientific and academic conferences (and related documents).
Also of significance is that
- Institutions as businesses can now sue only if a statement caused, or was likely to cause, serious financial loss
- People bringing a libel action will now have to prove that the statement caused, or was likely to cause, serious harm to their reputation.
- A website operator institution that permit user-generated content will no longer have to pre-moderate reader comments and are largely immune from being sued over website comments generated by users provided they are responsible in how they operate their commenting system.
User-generated Defamatory Comments
Section 5 of the Act creates a new defence to an action for defamation brought against the operator of a website hosting user-generated content where the action is brought in respect of a statement posted on the website. The changes provide a mechanism for people who claim to have been defamed to resolve the matter with the person who is responsible for the alleged defamatory posting where they can be identified. Where the poster cannot be identified or is unwilling to engage in the process offending material is to be removed.
Single Publication Rule
The one-year time limit for starting web libel actions now starts when an article is first published online. The 2013 Act establishes a single publication rule which should prevent, amongst other things, indefinite liability for online publications, including internet archives, a measure which will be appreciated by FE and HE institutions and which reduces the exposure to some of the risk associated with publishing.
Generally the changes include
- A new statutory defence to an action for defamation of 'responsible publication' on a matter of public interest
- Common law defences of 'justification' and of 'fair comment' are replaced with new statutory defences of 'truth', and of 'honest opinion'.
- It removes the current presumption in favour of a jury trial.
- Increased protection to operators of websites that host user-generated content, providing they comply with the procedure to enable the complaint to resolve disputes directly with the author of the material concerned. Regulations under this section are to be made by statutory instrument.
- Claimants are required to show they have suffered 'serious harm' to their reputation before suing for defamation.
The Act is applicable to England and Wales only. Defamation is a devolved matter for Scotland and Northern Ireland.
More information on the introduction of the new Act is available in the Government's Press Release.
If you have any concerns contact Legal Support at firstname.lastname@example.org