Elements of defamation

The other aspects of tort law contained in this textbook have been mainly concerned with the protection of personal safety or protection against some other form of physical interference but defamation is different because it is concerned with protecting against harm caused by words. The aim of the law of defamation is to provide compensation for those whose reputations are harmed by untrue statements and to enable those threatened with loss of reputation to apply for (but rarely obtain) an interim injunction to prevent the publication of a potentially defamatory statement. It is a procedurally complex area of law and it is important that you understand the full range of defences, which will be covered in the next chapter, Chapter 15.

We have seen that defamation is different from other torts in terms of the complicated legal procedures involved in taking or defending an action, and, because it is one of the oldest torts, a large body of case law has evolved in protecting against wrongful loss of reputation. Unlike other tort actions, the limitation period for defamation is one year from date of publication and defamation actions do not survive the death of either party. Defamation has, until recently, been one of the few remaining areas of civil law with jury trials, however this will now be rare due the Defamation Act 2013 s 11. This statute significantly reformed and codified the defamation laws in England and Wales to meet the needs of the digital age and provide the protections and freedoms required in the 21st century, particularly since the Human Rights Act 1998.

There are two types of defamation: libel, which is in a written or permanent form, and slander, which is spoken or in a non-permanent form. It was formerly the case that libel was actionable per se, however in Section 1of the 2013 Act the requirement for proof of serious harm was introduced. This was recently interpreted by the Supreme Court in Lachaux v Independent Press Ltd. Save for special exceptions, slander has always required proof of special damage.

We’ve seen that, to be actionable, there are three requirements:

  • A defamatory statement
  • Which was published
  • And which referred to the claimant.

Each of these requirements has generated a considerable amount of case law, with which you must be familiar. For instance, a defamatory statement has been held to be one which would ‘tend to lower the plaintiff in the eyes of right-thinking members of society generally’ (Sim v Stretch). Publication requires that the statement be conveyed to a third party, other than the spouse of the defendant. Reference to the claimant is often straightforward, however in situations in which this is in doubt, the test is not what the defendant intended; but whether reasonable people would believe the words complained of referred to the claimant.