Print and Be Damned

What is defamation? A defamatory statement is where one person damages a person’s good name without lawful justification or excuse. When a defamatory statement is in writing it is libel and when a defamatory statement is made orally, it is slander.

The changes brought in under the Defamation Act of 2013, including the new requirement that a Claimant will need to show that the statement has caused serious harm to their reputation – this is to deter trivial claims. Further, where a body or organisation is trading for profit, they will need to show that the defamatory statement has caused or is likely to cause serious financial loss.

A further change provides protection for website operators in respect of defamatory statements posted by others on their website, although the Court does have the power to order the operator to remove any offending material. Where a posting on a website is anonymous, as long as the website operator has complied with the appropriate regulations, including a procedure whereby a prospective Claimant can notify the website operator and the operator hands over the address of the anonymous poster and removes the offending article, the operator will have a defence.

Further, the historic common law defence of “fair comment” has now been replaced under the Act with the defence of “honest opinion”. The Defendant will need to show that the statement is an honest expression of a genuinely held opinion. This defence does not apply to the assertion of a fact made to look like an opinion.

With any defamation action, it is always important to remember that there is a short limitation period of one year from when the claim arose, to issue Court proceedings.

It will be interesting to see what impact changes the Defamation Act 2013 has and whether it will make smaller claims rarer. I do, however, anticipate that the big headline-grabbing claims will continue as before.