Keenan and Riches’BUSINESS LAW

Defamation

Defamation is the publication of a false statement which
damages a person’s reputation and tends to lower him
in the estimation of right-thinking members of society
or tends to make them shun or avoid that person. It
takes two forms: libel and slander. Libelis defamation in
a permanent form, such as writing, pictures, a film or
a play. Slanderis defamation in a transitory form, for
example speech or gestures. Examples of defamation in-
clude a bank mistakenly ‘bouncing’ a customer’s cheque
for lack of funds, when there is plenty of money in the
account, or an employer writing a damaging character
reference for an employee. An important difference
between libel and slander is that in the case of libel the
claimant does not have to prove that he suffered damage,
i.e. libel is actionable per se. In contrast, most slanders
are actionable only on proof of damage. The exceptional
situations where slander is actionable per seare as
follows:

■an imputation that the claimant is guilty of a criminal
offence for which he could be sent to prison;
■an imputation of unchastity made against any woman
or girl;
■an imputation that the claimant has an infectious
or contagious disease so that people would avoid him;
and
■any words that suggest that the claimant is unfit to
carry on his trade, business or profession.

In order to establish a case in defamation, the claimant
must establish the following requirements in relation to
the statement:

■it must be false;
■the statement must be defamatory in the sense that it
lowers the claimant’s reputation;
■it must refer to the claimant; and

■it must be published, i.e. it must be communicated to

someone other than the claimant.

The law tries to strike a balance between the right of

an individual to protect his reputation and society’s

interest in freedom of speech by providing a number of

defences to an action in defamation.

1 Justification or truth.A person cannot complain

about a true statement, since the effect is to reduce an

inflated reputation to its proper level.

2 Fair comment on a matter of public interest.Those

who place themselves in the public eye must expect hon-

est criticism of what they do. The defence is not available

where the defendant acted out of malice or spite.

3 Privilege.Statements made on some occasions, for

example in Parliament or in court, are absolutely privil-

eged and the person whose reputation has been injured

is deprived of legal redress. Some statements attract

qualified privilege – for example, job references. This

means that the defence is available only to the extent

that the defendant acted honestly and without malice.

4 Unintentional defamation under the Defamation

Act 1996.The publisher of an innocent defamation

may escape liability by making an offer of amends (the

publication of a correction and apology), with damages

assessed by a judge.

5 Consent to publication. If the claimant has con-

sented to the publication of the defamatory material,

this will be a defence.

A successful claimant may be awarded damages or

granted an injunction. Defamation is one of the few

areas of the civil law where juries are still commonly

used. There has been considerable criticism in recent

years of high awards made by juries in defamation cases,

especially when compared with awards in personal

injury cases. Under the Courts and Legal Services Act

1990, the Court of Appeal may now substitute its own

award for that of a jury award which it deems inade-

quate or excessive. The Defamation Act 1996 provides

for a new summary procedure for defamation cases,

with judges assessing the damages rather than a jury.

An injunction may be granted, in addition to an

award of damages, to prevent either initial or further

publication of the defamatory material.

The limitation period for defamation claims was re-

duced from three years to one year by the Defamation

Part 3Business transactions

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(ii)The rule does not apply to works constructed or con-

ducted under statutory authority.

(iii)Unusual natural events (acts of God) and the actions

of third parties, e.g. vandals, will exclude strict liability.

(iv)The rule did not apply to ‘natural’ uses of land. What

is a non-natural use of land should be judged by con-

temporary standards, and a relevant guide is whether

the risk was something that the occupier would be likely

to have insured himself against.