Elements of Defamation
Defamation is the publication of a statement that tends to lower the claimant in the estimation of right-thinking members of society generally (Sim v Stretch [1936] 2 All ER 1237). The claimant must establish three elements: (1) the statement is defamatory; (2) it refers to the claimant; and (3) it has been published to a third party.
The Defamation Act 2013 introduced a significant threshold requirement: the claimant must show that the publication has caused, or is likely to cause, serious harm to their reputation (s.1(1)). For bodies trading for profit, serious harm means serious financial loss (s.1(2)). In Lachaux v Independent Print Ltd [2019] UKSC 27, the Supreme Court held that "serious harm" requires proof of actual or probable serious harm as a fact, not merely a tendency to cause harm.
Libel and Slander
Libel is defamation in a permanent form (writing, print, broadcast, film). Slander is defamation in a transient form (spoken words, gestures). Libel is actionable per se — the claimant need not prove special damage. Slander generally requires proof of special damage (actual financial loss), subject to four exceptions: (1) imputation of a criminal offence punishable by imprisonment; (2) imputation of a contagious disease; (3) imputation of unchastity in a woman (Slander of Women Act 1891); and (4) imputation of unfitness in any office, profession, or trade (Defamation Act 1952, s.2).
The distinction has been criticised as anachronistic, particularly given that broadcasts are treated as libel under the Broadcasting Act 1990. The internet has further blurred the line, with courts treating online publications as libel.
Defences: Truth and Honest Opinion
Truth (s.2 Defamation Act 2013) is a complete defence. The defendant must show that the imputation conveyed by the statement is substantially true. Where a statement conveys two or more distinct imputations, the defence is not defeated merely because one imputation is not shown to be substantially true, provided it does not seriously harm the claimant's reputation having regard to the truth of the other imputations.
Honest opinion (s.3 Defamation Act 2013, replacing the common law defence of fair comment) requires: (1) the statement is one of opinion, not fact; (2) it indicates the basis of the opinion; and (3) an honest person could have held the opinion on the basis of any fact which existed at the time or any privileged statement published before. The defence is defeated if the claimant shows the defendant did not hold the opinion.
Defences: Privilege and Public Interest
Absolute privilege provides a complete defence regardless of malice. It applies to: parliamentary proceedings (Bill of Rights 1689, Art.9); judicial proceedings; fair and accurate contemporaneous reports of court proceedings; and communications between solicitor and client.
Qualified privilege protects statements made on occasions of duty or interest, provided there is no malice. The common law defence covers situations where the publisher has a duty or interest in making the statement and the recipient has a corresponding duty or interest in receiving it (Adam v Ward [1917] AC 309).
The public interest defence (s.4 Defamation Act 2013) replaced the Reynolds privilege. The defendant must show: (1) the statement was, or formed part of, a statement on a matter of public interest; and (2) the defendant reasonably believed that publishing the statement was in the public interest. The court must have regard to all the circumstances, including editorial judgement.
Remedies and the Single Publication Rule
The primary remedies are damages (compensatory and, in exceptional cases, aggravated or exemplary) and injunctions. The court may also order a summary of its judgment to be published (s.12 Defamation Act 2013).
The single publication rule (s.8 Defamation Act 2013) provides that the limitation period runs from the date of first publication, not from each subsequent access. This reversed the common law rule in Loutchansky v Times Newspapers [2002] QB 783 which had treated each hit on a website as a fresh publication.
Website operators have a defence under s.5 if they did not post the statement, provided they comply with the regulations for handling complaints about defamatory material.
Key Cases
| Case | Key Principle |
|---|---|
| Sim v Stretch(1936) | Defamatory statement lowers claimant in estimation of right-thinking members of society |
| Lachaux v Independent Print(2019) | Serious harm under s.1 Defamation Act 2013 requires proof of actual serious harm as fact |
| Reynolds v Times Newspapers(2001) | Responsible journalism defence (now replaced by s.4 public interest defence) |
| Jameel v Wall Street Journal(2006) | Reynolds privilege applied to responsible journalism on matters of public interest |
| Thornton v Telegraph Media Group(2010) | Meaning of defamatory statement determined by single natural and ordinary meaning |
Exam Tips
Exam Tip
Structure defamation answers methodically: (1) is the statement defamatory? (2) does it refer to the claimant? (3) has it been published? (4) has serious harm been caused (s.1)? Then address defences. Always cite the Defamation Act 2013 provisions alongside the common law — examiners want to see you understand the statutory reforms.
Common Mistake
Students often discuss the old Reynolds privilege without acknowledging it has been replaced by s.4 Defamation Act 2013. While the case law remains relevant to understanding the public interest defence, the statutory framework is now the primary authority.