Tort Law: Defamation

Defamation protects reputation. A statement is defamatory if it tends to lower the claimant in the estimation of right-thinking members of society generally (Sim v Stretch). The modern law is shaped heavily by the Defamation Act 2013, which raised the bar for bringing a claim and reworked the defences.

1. Libel and Slander

Libel is defamation in a permanent form (writing, broadcast, online) and is actionable without proof of special damage. Slander is in a transient form (usually spoken) and generally requires proof of actual loss, subject to limited exceptions.

2. The Serious Harm Threshold

The 2013 Act added a significant hurdle: the statement must have caused, or be likely to cause, serious harm to reputation. For a company trading for profit, that means serious financial loss.

3. What the Claimant Must Prove

The claimant must establish three things: that the words carry a defamatory meaning, that they refer to the claimant, and that they were published to at least one third party. Once those are shown, alongside serious harm, the burden shifts to the defendant to make out a defence.

4. The Main Defences

Truth (s.2)

It is a complete defence to show that the imputation conveyed is substantially true. The defendant need not prove every detail, only the sting of the allegation.

Honest opinion (s.3)

The defendant must show the statement was one of opinion, that it indicated its basis, and that an honest person could have held that opinion on the facts available. This replaced the old defence of fair comment.

Publication on a matter of public interest (s.4)

A defendant who reasonably believed that publishing a statement on a matter of public interest was justified has a defence, with the court making allowance for editorial judgement. This put the former Reynolds defence on a statutory footing. Privilege (absolute and qualified) remains available for protected occasions.

5. Worked Example

Defamatory and serious: the allegation lowers his reputation and, given the lost contracts, meets the serious harm threshold (Lachaux). Reference and publication: he is named and it was printed to readers. Defence: the paper would need to prove the truth defence (s.2), which fails on these facts, so the claim is likely to succeed.

Examiner Insights

Conclusion

Defamation balances reputation against free expression. Prove a defamatory meaning, reference, publication and serious harm, then test the statutory defences. The 2013 Act is the spine of the topic, so know its sections and Lachaux.