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Defamation

This publication is not intended to be a comprehensive review of all
developments in the law and practice, or to cover all aspects of
those referred to. Readers should take legal advice before applying
the information contained in this publication to specific issues or
transactions. For more information please contact us at Ashurst
LLP, Broadwalk House, 5 Appold Street, London EC2A 2HA
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Ashurst LLP 2013 Ref: 9091715 May 2013


Defamation
This guide considers what a defamatory
statement is under English law and the
relevant defences and remedies. It also looks
at the malicious publication of false
statements. Topics covered include:
Defamation
Libel, slander or malicious falsehood?
Transition to the Defamation Act 2013
What is "defamatory"?
Can a company or other organisation be
defamed?
Publication
Who can sue in defamation actions?
Cross-border defamation
Table: Defences to defamation issues
arising
What are the remedies for defamation?
Future developments: statutory
instruments and uncertainties with regard
to costs
Malicious falsehood
How does it differ from defamation?
Advantages and disadvantages
Basic ingredients

Defamation

Defamation
1. Libel, slander or malicious falsehood?
Defamatory words published to a third party give rise to a cause of action for defamation. There are two types of
defamation actions: libel and slander. Where publication is in writing or other permanent form the action is in
libel. It includes radio and television broadcasts. Where publication is spoken or in some other temporary form,
the action is in slander. To sue successfully for slander, financial loss or damage must be shown, except in
certain circumstances.
1
It is unnecessary to show loss in a libel action.
2
Some harm arising from the publication
of a libel is presumed.
Malicious or injurious falsehood is a related but separate cause of action from defamation. It is described as an
action "for damage wilfully and intentionally done without lawful occasion or excuse".
3
It is available where false
statements are published maliciously causing harm. Malicious falsehood is dealt with in more detail at the end of
this guide.
2. Transition to the Defamation Act 2013
The Defamation Act 2013 (the 2013 Act) received Royal Assent on 25 April 2013. The new legislation will
overhaul the existing rules with a view to striking a fairer balance between the right to freedom of expression
and the protection of reputation. In practice, the 2013 Act codifies parts of the existing law and brings about a
number of substantive changes aimed at deterring trivial claims and increasing or simplifying the number of
defences available to defendants.
The 2013 Act will come into force later in the year and will apply to causes of action which accrue after its
commencement date. This means that the current regime will continue to apply to actions accruing before that
time.
3. What is "defamatory"?
Words are defamatory if they are likely to harm a person's reputation. If the words complained of are not
"capable" of bearing the meaning alleged by the claimant or are not defamatory the court may strike out the
claim
4
. There is no single definition, but the following are useful guides:
"would the words tend to lower the plaintiff in the estimation of right-thinking members of society
generally?";
5

"A publication which is calculated to injure the reputation of another by exposing him to [public] hatred,
contempt, or ridicule";
6

"if it tends to make the plaintiff be shunned and avoided".
7

The 2013 Act introduces a "serious harm" threshold so that claimants will now have to show that they have
suffered serious harm to their reputation
8
. The Explanatory Notes to the 2013 Act clarify that this requirement,

1
The most relevant to a commercial context being where the slander contains allegations calculated to disparage a person in any office, profession,
calling, trade or business held or carried on by him at the time of publication. s. 2 Defamation Act 1996.
2
Even in the case of a corporation: Jameel and others -v- Wall Street Journal Europe Sprl [2006] UKHL 44.
3
Ratcliffe -v- Evans [1892] 2 QB 524.
4
For example, in 1996 The Sunday Times tried unsuccessfully to persuade the court to strike out a claim by Stephen Berkoff over an allegation that
he was hideously ugly: Berkoff -v- Burchill [1996] 4 All ER 1008, CA. PD 53.4.1 allows the court to determine the question of culpability at an
early stage.
5
Sim -v- Stretch [1936] 2 All ER 1237, HL.
6
Parmiter -v- Coupland [1840] 6 M&W 105.
7
Youssoupoff -v- Metro Goldwyn-Mayer Pictures Limited [1934] 50 TLR 581, CA.
8
Defamation Act, 2013, s.1(1).
Page 1

Defamation

which was influenced by a number of cases identifying a threshold of seriousness
9
, is aimed at dissuading trivial
claims. The meaning of "serious harm" is not defined but suggests a higher threshold than "substantial harm"
which was initially required in the draft Defamation Bill in 2011
10
. It will therefore be up to the courts to
determine the seriousness of the harm in light of the individual circumstances of the case
11
.
3. Can a company or other organisation be defamed?
A company can bring an action in respect of words that damage its trading reputation
12
. Officials of
unincorporated associations can bring personal actions but the unincorporated associations themselves cannot
sue. Government departments (central or local) cannot sue for libel but individual councillors or officers may.
13

No libel claim can be brought by others on behalf of someone who has died (unlike actions for malicious
falsehood see section at the end of this guide).
Under the 2013 Act, harm to the reputation of a body that trades for profit is not "serious harm", and therefore
not defamatory, unless it has caused or is likely to cause the body serious financial loss
14
. This substantial
change will make it more difficult for companies to successfully sue for defamation
15
.
4. Publication
Publication takes place whenever the defendant has communicated the defamatory matter to someone other
than the person defamed. To be found liable, the defendant must be a primary or secondary publisher of the
defamatory statement. A primary publisher is a person who exercises direct control over the published
statement; this includes authors, editors and publishing houses
16
. A secondary publisher will not take an active
editorial role but will still be liable if it makes the defamatory statement available to third parties.
There is no need for a person to draw the attention of the third party specifically to the defamatory matter. It is
enough if he makes the matter available in circumstances where he has reason to believe it will be read. The
particular communicator of the defamatory matter will therefore be responsible for publication but liability will
also extend to anyone who participates in, secures or authorises the libel. So, in the case of a newspaper libel,
the journalist, editor, publishing company and, on occasion, even the printer can be sued
17
; in the case of an
online publication, the owner of the website or the Internet Service Provider (ISP) could equally be sued
18
. The
Civil Liability Act 1978 allows the court to apportion damages between the various parties who are responsible
for the publication of the defamatory material.
Under the 2013 Act, a court will not have jurisdiction to hear or determine an action brought against a person
who is not the author, editor or publisher unless it is satisfied that it is not reasonably practicable for an action to
be brought against the author, editor or publisher
19
. This reinforces the distinction between primary and
secondary publishers and is aimed at reducing the number of actions against intermediaries, such as ISPs or
social media platforms, which have multiplied over the last years
20
.

9
Explanatory notes to the Defamation Act 2013, s.11. The explanatory notes refer in particular to Thornton -v- Telegraph Media Group Ltd [2010]
EWHC 1414, which identifies a decision of the House of Lord in Sim- v- Stretch [1936] 2 All ER 1237 and Jameel (Youssef) v- Dow Jones & Co
Inc [2005] QB 946, as authorities for the existence of a requirement of seriousness.
10
And which was already referred to in Thornton -v- Telegraph Media Group Ltd.
11
Defamation Bill Committee Stage Report, Bill No 51 2012-13, Research Paper 12/49, 31 August 2012.
12
Jameel and others -v- Wall Street Journal Europe Sprl [2006] UKHL 44.
13
Derbyshire CC -v- Times Newspapers Ltd [1993] AC 534, HL.
14
Defamation Act 2013, s.1(2).
15
This change also confirms a trend in case law where some courts have tried to make it harder for corporations to sue in defamation. For instance
in Collins Stewart Ltd & Another v- Financial Times Ltd ([2004] EWHC 2337 QBD), the High Court held that alleging a shortfall in the market
capitalisation of a company as a suggested measure of damages was far too uncertain to be acceptable as a legal basis for assessing damages. If
followed and applied to the 2013 Act, this decision could also suggest that companies could not refer to a fall in share price to show that they
suffered serious financial losses.
16
Defamation Act 1996, s.1(2).
17
But see the defence of "innocent dissemination" below.
18
Godfrey -v- Demon Internet Ltd [1999] EWHC QB 244.
19
Defamation Act 2013, s.10.
20
Also see below for the new defence provided to website operators who promptly remove defamatory content following receipt of a sufficient notice
(Defamation Act 2013, s.5).
Page 2

Defamation

Page 3


5. Who can sue in defamation actions?
An action for defamation is a purely personal action. The claimant must be the person who has been directly and
personally defamed.
A class of persons cannot be defamed as a class, nor can an individual be defamed by a mere general reference
to the class to which he belongs; but a person or persons may bring a claim if he is or they are pointed to by the
words complained of.
The test is whether the defamatory statement is capable of being understood as referring to the claimant. The
publisher's intention is irrelevant. Accordingly, it is by no means fatal to a claim that the claimant is not
mentioned by name. Using a nickname, describing physical characteristics or some "peg or pointer" leading
people to identify him as the person defamed is sufficient. Where words refer to a body or class of people, there
will be no cause of action unless the class is sufficiently small that the words can reasonably be understood as
referring to the individuals in that class. "All plumbers are crooks" is not defamatory but it may be defamatory to
say that all plumbers from a specific company are crooks.
6. Cross-border defamation and "libel tourism"
The European Court of Justice has ruled that the victim of a defamatory statement published in several Brussels
Convention States may recover damages either in the jurisdiction where the publisher was established, or before
each of the courts where the defamatory publication was distributed and where the victim had suffered harm to
his reputation.
21
(The Brussels Convention has since been largely superseded by EC Regulation 44/2001
22
but
there are equivalent provisions in the Regulation.) This means that where a person is libelled in a foreign
newspaper but with a circulation in England, he may commence proceedings in the Contracting State of the
publishing company or in England (although his damage will be limited to the circulation in this country). The
claimant may only recover for damage suffered in any other jurisdiction if the laws of that country permit.
23

Claimants may still choose the English courts where the allegations are published in many jurisdictions or on the
internet. English courts have shown some reluctance (at least at first instance) to hear claims which in fact have
little or no connection with the country. However, in Berezovsky -v- Forbes Inc,
24
the House of Lords ruled that a
Russian businessman who was based primarily abroad could sue a US publication in the English courts even
though only a thousand or so copies were circulated in England. This has created situations of "libel tourism"
where wealthy foreign individuals sued in England of Wales despite the absence of clear connection to this
jurisdiction - and has been widely criticised as an excessive limitation to freedom of speech.
The 2013 Act attempts to address this issue when the defendant is not domiciled within the EU by requiring a
tighter connection to England and Wales. The court will no longer have jurisdiction to decide on such claims
unless it is satisfied that England and Wales is "clearly the most appropriate place" in which to bring the action
25
.
Courts will be required to consider the global picture of a dispute to decide whether it would be more appropriate
to hear the claim in another jurisdiction.

21
Shevill and Others -v- Presse Alliance SA [1995] 2 AC 18 ECJ; and see House of Lords' application of the ECJ decision [1996] AC 959.
22
Regulation on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, applicable in all European countries
except Denmark to which the Brussels Convention continues to apply.
23
Shevill and Others -v- Presse Alliance SA ibid.
24
[2000] 1 WLR 1004, HL.
25
Defamation Act 2013, s.9(2).
Defamation

7. Defences to defamation: issues and changes under the
Defamation Act 2013
Defence Issues Changes under the Defamation Act
2013
Limitation

One year from the date on
which the cause of action
accrues.
26


The court may exclude this time
limit if it considers it equitable
to do so.
27

When does publication take
place?

In Loutchansky -v- The Times
Newspapers
28
a Russian
businessman brought two actions
for libel concerning articles
published describing him as a
"suspected Mafia boss" involved in
money laundering and smuggling
nuclear weapons. The editions were
then archived online and continued
to be available to the public.
Anyone consulting the archive
would have been unaware that the
accuracy of the articles had been
disputed. Dr Loutchansky brought
the second action in respect of the
online archive after the one-year
limitation period had expired.

Refusing to follow the US single
publication rule, i.e. that a
newspaper is published only once
at the time of the original
publication, the Court of Appeal
held that each individual
publication of libel gives rise to a
separate cause of action, subject to
its own limitation period. Each hit
on an online archive amounts to
republication and the limitation
period runs from the time the
material is accessed.
Single Publication Rule
29


The 2013 Act overturns Loutchansky -
v- The Times Newspapers and
establishes a single publication rule
which should prevent indefinite or
extended liability for archives or online
publications, including on the Internet.

The limitation period in relation to
subsequent publications of the same
material by the same publisher will be
treated as starting on the date of the
first publication.
Innocent dissemination


Certain persons including printers,
distributors or retailers may escape
liability if they can show they took
reasonable care in relation to the
publication and did not know, and
had no reason to believe, that they
caused or contributed to the
Gives limited protection to
those with technical, but not
editorial, responsibility for
publications

Particularly relevant to live
broadcasters and internet service
providers whose role is limited to
supplying access to the material.

Operators of websites and
secondary publishers
34



The defence of innocent dissemination
is not abolished by the 2013 Act.
However, it will have to co-exist with a
new defence which will apply to
operators of website.


26
Defamation Act 1996, s.5 amends Limitation Act 1980, s.4A.
27
Limitation Act 1980, s.32A.
28
[2002] QB 783, CA.
29
Defamation Act 2013, s.8.
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Defamation

Defence Issues Changes under the Defamation Act
2013
publication of a defamatory
statement.
30

However, in Godfrey -v- Demon
Internet Limited
31
the court
decided that an ISP could not avail
itself of this defence where its
service carried a defamatory
message from an unknown th
party. The complaint related not to
the initial publication and
transmission of the message, but
the ISP's failure to remove the
message once its false and
defamatory nature had been made
known to it. The judge held
the ISP had not taken reasonab
care and therefore contribute
its continuing
ird
that
d t
publication.


le
o
the operator has received a notice
of complaint and complies with
regulations which require him to
take down the post and/or provide
the claimant with the identify of the
poster

By contrast in Payam Tamiz v-
Google Inc and another
32
it was
held that Google's role as a
platform provider was purely
passive and this took it outside the
definition of a publisher, even
though the claimant had notified
Google of the existence of the
defamatory material.

Liability for hyperlinks was
addressed by the High Court in
McGrath and another v- Dawkins
and other
33
where it was held that
the operator of a website could be
liable for links to allegedly
defamatory postings on a website
even though the website itself
carried no defamatory posting.
The operator of a website will have a
defence in relation to a defamatory
statement posted by a third party if:
the claimant can identify the
poster; or
the operator has not received a
notice of complaint
35
; or
36
;
The defence is defeated if the claimant
shows that none of these apply or if
the operator of the website acted with
malice in relation to the posting of the
statement concerned
37
.

In addition, the court will not have
jurisdiction against secondary
publishers if an action can reasonably
be brought against the author, editor
or publisher
38
.


30
Defamation Act 1996, s.1.
31
[2001] QB 201.
32
[2012] EWHC 449 (QB).
33
[2012] EWHC B3 (QB).
34
Defamation Act 2013, s.5 and 10.
35
See Defamation Act 2013, s.5 and 6. The notice of complaint will have to specify the complainant's name, the disputed statement, explain why it
is defamatory, specify its location on the website and any other information which may be required in regulations implementing the 2013 Act.
36
Defamation Act 2013, s.5(3). Further regulations are expected in the coming months to clarify the process that must be followed by operators
when dealing with notices of complaint.
37
Defamation Act 2013, s.5(11).
38
Defamation Act 2013, s.10 as discussed above.
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Defamation

Defence Issues Changes under the Defamation Act
2013
Offer of amends

Where a publisher did not know,
and had no reason to believe, that
the offending words were
defamatory of the claimant, or
simply that they were false, the
publisher may serve notice on the
claimant offering to make a
suitable apology and correction and
to pay him damages.


If the offer is rejected, the
publisher will have a full defence to
the action. If the offer is accepted,
any terms which cannot be agreed
between the parties will be
determined by the court.
39
The
defence has not proved popular as
there is a perception that there is
little control over the terms that
may be imposed by the court.


No change.
Justification

Defendant must prove, on the
balance of probability, that the
words are true.
The "repetition rule"

If A says that B told him that C had
been convicted of theft, it will be no
defence for A to prove that B told
him so; he must prove as a fact
that C was convicted of theft.
However, a defendant need prove
only that the defamatory statement
was "substantially" true, e.g. where
it is stated that a person was
sentenced to three weeks'
imprisonment it will be sufficient
justification to show that he was
sentenced for a fortnight. In
practice the line is sometimes
difficult to draw.
Defence of Truth
40


The defence of justification is formally
abolished by the 2013 Act and
replaced by this new defence.

However in practice, the 2013 Act
seem to endorse the existing case law
on the defence of justification and it is
therefore likely that similar legal
principles will continue to apply.

In essence, the new defence means
that the defendant has a defence if he
can show that the imputation conveyed
by the statement is substantially true
or that it did not seriously harm the
claimant's reputation
41
.
Fair comment

Fair comment made in good faith
and without malice on a matter of
public interest is a defence to a
claim for defamation. It protects
the expression of honestly held
opinions on matters of public
concern.

The defendant must establish that:

the subject matter was a matter
of public interest;

the expression of opinion was
based on a true factual
background;
Defeated by proving malice

The defence of fair comment may
be defeated by the claimant
proving malice.

Malice means made with some
indirect or improper motive or
knowing the statement to be
untrue, or with reckless
indifference as to its truth.

An improper motive is usually
shown by the claimant proving that
the defendant had knowledge that
the sole or dominant purpose of the
statement was to harm the
claimant.
42

Honest Opinion
43


The defence of fair comment is
abolished by the 2013 Act and
replaced by this new defence. The
defendant should show that the
following conditions are met:

the statement complained of was a
statement of opinion and not an
assertion of fact;
the statement indicated the basis
of the opinion; and
an honest person could have held
the opinion on the basis of:

39
Defamation Act 1996, ss.2-4.
40
Defamation Act 2013, s.2.
41
Defamation Act 2013, s.2(3).
42
Horrocks -v- Lowe [1975] AC 135, HL at 149-151.
43
Defamation Act 2013, s.3.
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Defamation

Defence Issues Changes under the Defamation Act
2013
the comment must be
understood by the reasonable
reader as comment rather than
an imputation of fact; and

the comment was an opinion an
honest minded person could
make on the facts.
However, unlike with the defence of
qualified privilege, intention to
injure, even if it is the dominant or
sole motive, will not of itself defeat
the defence of fair comment.

In respect of fair comment, a
defendant will be acting with malice
when he does not genuinely hold
the view expressed or is recklessly
indifferent to the truth or falsity of
his comments. An intention to
injure is not conclusive.

any fact which existed at the
time the statement was
published; or
anything asserted to be a fact
in a privileged statement
published before the statement
complained of.
This is broadly similar to the defence of
fair comments but simplified so there
is no longer a need to prove the fact
upon which an honest person could
have held such an opinion, and no
need for the comment to relate to
matter of public interest
44
.

The exception is defeated if the
claimant shows that the defendant did
not hold the opinion, or, if the
statement was only published by the
defendant but made by another
person, if the defendant knew or ought
to have known that the author did not
hold the opinion.
Qualified privilege

Arises where publications are
shown to have been made by a
person acting under a duty to a
person with a corresponding
interest and other similar
"public interest" situations.
45


A privileged occasion will exist
where the maker of the
statement is under a legal,
social or moral duty to make
the statement and/or the
recipient has an interest in
receiving it.

This is the most contentious
defence. It protects
communications of a "private"
Defeated by proving malice (see
Fair comment above).

Qualified privilege may also protect
publication to the public at large in
newspapers, or similar publications,
if the matter is of sufficient public
interest following the House of
Lords' decision in Reynolds -v-
Times Newspapers Ltd.
48
In this
case the Lords set out a non-
exhaustive list of ten factors to be
taken into account in determining
whether a publication by a
newspaper would be protected by
qualified privilege:

1. the seriousness of the
allegation;

Matter of public interest
51


This defence replaces the Reynolds
defence
52
. It will apply to statements
of fact as well as to statements of
opinion provided that the defendant
shows that:

the statement complained of was,
or formed part of, a statement on a
matter of public policy; and
the defendant reasonably believed
that publishing the statement was
in the public interest.
The court will have regard to all the
circumstances of the case to decide
whether these conditions apply; it no
longer has to consider an established

44
Public interest becomes a new independent defence as shown below.
45
Toogood -v- Spyring (1834) 1 CM&R 181 at 193.
46
Edmonson -v- Stephenson (1766) Buller's N.P.8.
47
Hunt -v- GN Ry [1891] 2 QB 189 CK.
48
[2001] 2 AC 127, HL.
49
Seaga v- Harper, [2009] 1 A.C. 1.
50
[2012] UKSC 11 (SC).
51
Defamation Act 2013, s.4.
52
The new defence is in fact based on the Reynolds defence which it seeks to simplify. See Explanatory Notes, paragraph 29.
Page 7

Defamation

Defence Issues Changes under the Defamation Act
2013
nature where some existing
relationship exists and is most
commonly used in the context of
business relationships. For
example:

directors informing shareholders
or employees about an
imminent takeover;

where an employer (who has a
duty) gives an employment
reference to a new employer
46

(who has an interest in
receiving the information);

where an employer informs the
workforce that another
employee has been dismissed
for misconduct;
47
and

(probably) a report made
without malice by an employee
or former employee of a
regulated business to its
Regulator.
2. the nature of the information
and the extent to which it was
of public concern;

3. the source of the information;

4. the steps taken by the
defendant to verify the
allegations;

5. the status of the information
(e.g. whether it has been the
subject of a respected
investigation);

6. the urgency of the information;

7. whether comment was sought
regarding the allegation from
the claimant;

8. whether the article contained
the gist of the claimant's side
of the story;

9. the tone of the article; and

10. the circumstances of
publication including time.

The Reynolds defence extends to
published material of public interest
in any medium (not just press and
broadcasting media), so long as the
Reynolds conditions as applicable
to "responsible journalism" are
satisfied.
49


The decision in Reynolds was
revisited by the UK Supreme Court
in Flood v- Times Newspaper
Ltd.
50
There the Supreme Court
took a broad approach to the public
interest test mentioned in Reynolds
and gave a wide degree of latitude
to the press when reporting
allegations which were
subsequently shown to be factually
untrue.

set of factors and must make such
allowance for editorial judgement as it
considers appropriate.
The 2013 Act also acknowledges the
common law doctrine of "reportage" as
this defence also encompasses the
situation where the statement
complained of was, or formed part of,
an accurate and impartial account of a
dispute to which the claimant was a
party provided that it was reasonable
for the defendant to believe that
publishing the statement was in the
public interest. The defendant does not
need to verify the truth of the
imputation
53
.

Extensions of the scope of
application of the defence of
qualified privilege
54

The 2013 Act also extends the
circumstances in which the defence of
qualified privilege applies
55
: its scope
is extended from reports of certain UK
or EU proceedings or official
documents to equivalent reports or
proceedings produced anywhere in the
world. Thus, where for instance the
current scope of the privilege only
covers proceedings at any public
meeting of any authority performing a
public function in the EU, the privilege
will be extended to cover proceedings
at any public meeting of any public
authority anywhere in the world.

53
Defamation Act 2013, s.4(3).
54
Defamation Act 2013, ss.7(2)-7(10).
55
See below in relation to the defence applicable to reports protected by privilege.
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Defamation

Defence Issues Changes under the Defamation Act
2013
Absolute privilege

A complete defence which affords
people protection to say what they
want without any fear of legal
action, regardless of how damaging
or malicious their words may be.


Includes Parliamentary proceedings
and papers, affairs of state, fair
and accurate reports of court
proceedings in the UK, certain
European courts and international
tribunals which are published
contemporaneously.
Extensions of the scope of
application of the defence of
qualified privilege
56


The 2013 Act updates and extends the
circumstances in which the defence of
absolute privilege apply. In general,
absolute privilege will apply to a wider
range of reports of court proceedings
to cover fair and accurate reports of
proceedings in any courts established
under the law of a country outside the
UK, and any international court
established by the Security Counsel of
the United Nations or by an
international agreement.
Peer-reviewed statements in
scientific or academic journals
57


The 2013 Act creates a new defence
for statements in scientific or academic
journals which are deemed
privileged- provided that:

the statement relates to a scientific
or academic matter; and
an independent review of the
statement's scientific or academic
merit was carried out by the editor
of the journal or one or more
people with expertise in the matter
concerned.
8. What are the remedies for defamation?
Pre-Action protocol
The Pre-Action Protocol for Defamation is designed to "encourage exchange of information between parties at an
early stage and to provide a clear framework within which parties to a claim in defamation, acting in good faith,
can explore the early and appropriate resolution of that claim". Litigation is a last resort and parties are expected
to comply with the terms of the protocol before issuing proceedings. However, the protocol does acknowledge
that defamation claims are different to other areas of civil litigation. In particular, it recognises that "time is of
the essence" in such disputes and that "almost invariably, a claimant will be seeking an immediate correction
and/or apology as part of the process of restoring his/her reputation".
The protocol contains guidelines on the contents of the letter before claim which should be sent "at the earliest
reasonable opportunity". The claimant must identify the publication or broadcast complained of and, if possible,
produce a copy or transcript and explain why the relevant words are inaccurate or unsupportable. The defendant

56
Defamation Act 2013, s.7(1).
57
Defamation Act 2013, s.6.
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Defamation

is required to respond as soon as reasonably possible. The protocol also suggests various forms of alternative
dispute resolution. If the dispute does proceed to litigation both parties will be expected to provide evidence to
the court that they considered alternative ways of settling the dispute.
Summary disposal - apology
Under sections 810 of the Defamation Act 1996 if it appears there is no defence to the claim which has a
realistic prospect of success and that there is no other reason why the claim should be tried, the court may give
judgment for the claimant and grant him summary relief. Alternatively, the court can dismiss the claim if it
appears to have no realistic prospect of success.
58

Unless the claimant asks for summary relief, the court shall not grant it unless it is satisfied that summary relief
will compensate the claimant adequately for the wrong he has suffered. This effectively means at the present
time that the court must be satisfied that damages of 10,000 or less would be sufficient.
59
Summary relief also
includes a defamation declaration that the statement was false and defamatory and an order that the defendant
publishes a suitable correction and apology.
Non-judicial remedy
The Press Complaints Commission (PCC, 020 7831 0022; www.pcc.org.uk) is an independent organisation which
deals with complaints about the editorial content of newspapers and magazines. OfCom (020 7981 3040;
http://www.ofcom.org.uk) performs a similar function in relation to material broadcast on television or radio.
In December 2011 Lord Hunt announced his plans to replace the PCC with a new independent regulator and on
29 November 2012, the Leveson report recommended the creation of an independent self-regulatory body which
would replace the PCC and have a range of sanctions available to it, including fines and directions for the
prominence of apologies and corrections. The government refused to consider introducing statutory underpinning
for a new press regulator but unveiled, on 12 February 2013, its proposal to create a new regulator by Royal
Charter. A revised draft Royal Charter on press regulation was published on 18 March 2013
60
which proposes the
creation of a new body - the Recognition Panel - tasked with certifying an independent press self-regulatory body.
The Charter also lists a number of "recognition criteria" which will have to be complied with by any self-
regulatory body seeking to be recognised by the Panel
61
.
A rival draft charter for the creation of a new press regulator was also issued by a group of publishers on 25
March 2013, and a consultation was initiated on this second proposal by the Privy Council, open until 24 May
2013. A second consultation is expected on the cross-party proposal at a later stage this year. Both proposals
are controversial and very different; their co-existence creates uncertainties about the shape and powers of the
future new regulatory body.
Damages
Under the current regime, damages for defamation come under four categories:
General damages: compensate the claimant for the harm caused to his reputation at large;
Special damages: awarded if the claimant can show any specific loss arising from the defamatory
statement (for example, that he lost a contract because of the defamatory statement);

58
Defamation Act 1996, s.8(2) and (3).
59
The limit set by Defamation Act 1996, s.9(1)(c).
60
This proposal was the product of a compromise between the three main political parties. The agreement also included amendments to the Crime
and Courts Bill now Crime and Courts Act 2013 - which introduced exemplary damages for publishers who refused to join the new body, as an
incentive to join the new press self-regulatory body.
61
These conditions essentially prescribe requirements with regard to the body's independence, composition, duty to adopt standards codes,
complaints procedures, sanctioning powers, funding, investigative powers and the condition that the body would provide an arbitration process.
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Defamation

Exemplary damages: allowed if the claimant can show the defendant knew or was reckless as to
whether the words were false and defamatory and that they were published with the motive that the
economic advantage to the defendant outweighed the potential penalty;
62
and
Aggravated damages: allowed if there are factors which, in the minds of the jury, worsen the
defamation. This can include the conduct of the defendant in the action, or malice on his part in publishing
the defamatory statement.
Under the Crime and Courts Act 2013, special rules will apply to decide whether a certain number of Relevant
Publishers
63
, who commit libel or slander, may be liable to pay exemplary or aggravated damages . With regards
to such publishers:
exemplary damages must be claimed by the claimant and can only be awarded if the court is satisfied
that the Relevant Publisher has shown a deliberate or reckless disregard of an outrageous nature for the
claimants' rights. The court must be satisfied that exemplary damages are the right course of action, that
other remedies will not suffice and that the level of damages is the minimum necessary and proportionate
to the seriousness of the conduct; and
aggravated damages cannot be awarded to punish the defendant and can only be awarded to compensate
the claimant for mental distress.
The level of damages is still usually decided by the jury at trial. Both parties are now allowed to address the jury
on what the size of the award should be, but do not always do so. In particular, the size of general damages
awards in personal injury claims may be stated as a comparison. The ceiling for such damages is around
275,000
64
and, in practice, recent awards of general compensatory damages have been substantially lower than
this ceiling even where very serious allegations of defamation have been proven
65
. Despite these new rules,
substantial awards are still made. The defendant may appeal the damages awarded by the jury to the Court of
Appeal.
However, the 2013 Act removes the presumption in favour of jury trials
66
, which means that, in the future,
defamation cases will be tried without juries and that damages will be decided by judges unless a court orders
otherwise.
Interim injunctions -v- freedom of expression
It is very difficult to get an injunction to stop what is believed to be the imminent publication of defamatory
material. Under section 12 of the Human Rights Act 1998, a court considering an application for prior restraint
must pay particular regard to the importance of freedom of expression. In spite of this, there are occasions
where an injunction may be ordered, for example to prevent the disclosure of truly confidential information, or
when it can clearly be shown that the claimant is likely to succeed at trial. To succeed, there must be evidence of
intention to publish or repeat and the claimant must clearly specify what the published words will be
67
.
In addition, the courts generally refuse to grant an interim injunction to the claimant if the defendant genuinely
intends to plead a defence of justification,
68
fair comment on a matter of public interest or qualified privilege

62
Elton John -v- MGN Limited [1997] QB 586.
63
"Relevant Publisher" is defined as a person who, in the course of a business, publishes news-related material which is written by different authors
and is subject to editorial control (Crime and Courts Act 2013, s.41).
64
Cairns v- Modi/KC v- MGN Ltd [2012] EWCA Civ 1382, paragraph 25.
65
For instance in KC v- MGN, it was wrongly stated that KC had been convicted of the rape of a 14 year old, which was recognised by the court as
a "very serious allegation". The court only awarded 50,000, (with a starting point of 100,000 but a 50% discount to account for the offer of
amends procedure followed by the publishing newspaper). In Bento v- The Chief Constable of Bedfordshire Police [2012] EWHC 1525 (QB), the
court awarded 125,000 to a claimant who had been accused of murder in an official press release published by the Chief Constable following
acquittal. Serious allegations of professional misconduct in Cambridge v- Makin [2011] EWHC 12 (QB) (allegation of conflict of interest and abuse
of position as a non-executive director of a company) and in Thornton v- Telegraph Media Group Ltd [2011] EWHC 1884 (QB) (allegation that
the claimant had dishonestly claimed to have carried out an interview and gave copy approval to her interviewees) only gave rise to awards of
30,000 and 50,000 respectively.
66
Defamation Act 2013, s.11.
67
The claimant must provide the court with almost the precise words, see British Data Management plc -v- Boxer Commercial Removals [1996] 3 All
ER 707, HL.
68
The rule in Bonnard -v- Perryman [1891] 2 Ch 269, CA.
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Defamation

where there is no evidence of express malice. The American Cyanamid
69
test, which sets out the circumstances
where an interim injunction may be granted by applying the "balance of convenience", does not apply.
9. Future developments: statutory instruments and uncertainties
with regard to costs
Further clarifications or changes to defamation law are expected in the coming months. In particular some
implementation measures, by Regulation, are awaited in relation to the new defence created for website
operators. Further changes are also considered with regard to costs following the implementation of the Jackson
recommendations on civil litigation costs
70
.
Funding: Under Part 2 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO),
parties will have to bear the costs of lawyers' success fees and any after the event (ATE) insurance
premium for conditional fee agreements and ATE policies entered into after 1 April 2013
71
. However, the
government announced in December 2012 that defamation and privacy claims would be excluded
72
and
these claims are currently exempt. As a result, success fees and insurance premiums will continue to be
recoverable in defamation and privacy claims until a new regime of costs protection can be implemented
through changes to the civil procedure rules (CPR)
73
.
Cost Management: A mandatory pilot costs management scheme in defamation cases was launched as a
result of the Jackson review. This scheme organises the submission of detailed estimates of future base
costs and stricter duties for the court who must manage the costs in a manner which is proportionate to
the value of the claim and the reputational and public interest issues at stake (PD 51D). This pilot ran
until 31 March 2013 and will continue to apply to defamation claims issued before that date
74
. From 1
April 2013, new costs management rules
75
will apply to all multi-track cases
76
, including defamation
claims, with a view to reducing costs to what is proportionate.

69
American Cyanamid Co -v- Ethicon Ltd [1975] AC 396.
70
Review of Civil Litigation Costs, Final Report of Lord Justice Jackson, December 2009:
(http://www.judiciary.gov.uk/JCO%2fDocuments%2fReports%2fjackson-final-report-140110.pdf).
71
LASPO, ss. 44 and 46.
72
Written Ministerial Statement of the Parliamentary Under-Secretary of State for Justice (Mrs Helen Grant) on the implementation of Part 2 of
LASPO, 12 December 2012.
73
These changes are still being reviewed. In particular, recommended changes include the possibility of implementing a 10% increase in damages
awarded for defamation claims, to compensate claimants for no longer being able to recover success fees from a losing opponent; and relieving
claimants of liability for a successful defendant's legal costs (save in exceptional circumstances) (system known as "Qualified One-Way Costs
Shifting").
74
For more details on the pilot scheme, and a few others set up following the Jackson Review, see Costs Management Pilot - Final Report, 1 May
2013 ( http://www.judiciary.gov.uk/Resources/JCO/Documents/Reports/costs-management-pilot.pdf).
75
CPR 3.12 to 3.18. These new rules, which are similar and based on the rules used under the pilot scheme, require the submission of detailed costs
estimates before the first CMC and more active cost managements duties for the court to ensure that costs remain proportionate.
76
CPR 3.12. The new rules will apply to all courts except (1) where the proceedings are the subject of fixed costs or scale costs or the court
otherwise orders, (2) claims in the Commercial Court, and (2) claims of over 2 million in the Chancery, Technology and Construction Court and
Mercantile Courts.
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Defamation

Page 13


Malicious falsehood
10. How does it differ from defamation?
Malicious falsehood primarily protects property rights. The claimant is required, therefore, to prove financial loss
and the claimant's compensation will be more closely linked to actual financial loss. Defamation, on the other
hand, protects reputation, and therefore more substantial damages can be awarded even where there is no
financial loss, as the purpose of the award is to vindicate the claimant's reputation and compensate him for
injury to feelings
77
.
11. Advantages and disadvantages
The advantage of bringing a claim in malicious falsehood is that the claimant does not need to show that the
statement is of a defamatory nature. Malicious falsehood survives the death of either party and the right to sue
passes to the personal representatives.
The disadvantages of bringing a claim in malicious falsehood are that the claimant has to prove that the
statement is false whereas in defamation it is presumed to be false and it is up to the defendant to prove it to be
true. The claimant must also prove that the defendant published the words maliciously knowing them to be false
or indifferent as to their truth. In defamation there is no obligation to prove malice
78
.
12. Basic ingredients
Malicious falsehood is the generic term for the malicious publication of false statements which cause damage to
the claimant. The claimant must prove that:
the words complained of are false;
the words were published maliciously; and
the publication must have caused financial loss or be likely to cause such loss unless:
the words are calculated to cause pecuniary damage to the claimant and are published in writing or
other permanent form;
79
or
the words are calculated to cause pecuniary damage to the claimant in respect of any office,
profession, calling, trade or business held or carried on by him at the time of the publication.
80

There are no specific defences to a claim for malicious falsehood; the burden is on the claimant to prove falsity
and malice but the court rules require the defendant to admit or deny or state if he cannot admit or deny the
allegations.
81




77
The distinction is likely to become less obvious with the 2013 Act's requirement of serious harm, especially in the case of corporate bodies as
those are now required to show that the defamatory statement caused serious financial loss.
78
Except if a defence of fair comment or qualified privileged is raised under the current law, or if a defence of operators of website or peer-reviewed
publication is raised under the 2013 Act.
79
Defamation Act 1996, s.3(1)(a).
80
Defamation Act 1996, s.3(1)(b).
81
CPR Part 16.5.


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