Defamation: Libel and Slander
Defamation is a tort designed to protect a person's reputation. It arises where the defendant makes a statement that damages the claimant's standing in the eyes of others. The tort takes two forms: libel, which concerns permanent or written statements, and slander, which concerns transient or spoken statements.
Libel
Libel covers statements made in a permanent form. This traditionally encompasses written material such as books, newspapers, and letters, but the category extends beyond the written word. Television and radio broadcasts are classified as permanent and are therefore governed by libel under s 166 Broadcasting Act 1990. Similarly, public performances in a theatre fall within the scope of libel by virtue of s 4 Theatres Act 1968.
A critical feature of libel is that it is actionable per se: the claimant does not need to demonstrate any tangible loss flowing from the defendant's statement in order to succeed. The very publication of the defamatory material is sufficient to ground an action.
Slander
Slander covers statements made in a transient form, most commonly spoken words. Unlike libel, slander is not actionable per se. As a general rule, the claimant must prove actual tangible loss resulting from the statement. This distinction reflects the greater potential for harm associated with permanent publications, which can be reproduced and distributed more widely than a momentary spoken remark.
Essential Elements of Defamation
For a defamation claim to succeed, the claimant must establish three essential elements: (1) the defendant's words were defamatory; (2) the words referred to the claimant; and (3) the words were published to at least one third party.
1. Defamatory Words
The first question is whether the statement in issue is defamatory in nature. The courts have articulated this standard in several ways.
In Sim v Stretch [1936], the House of Lords held that a statement is defamatory if it tends to lower the claimant in the estimation of right-thinking members of society in general. This remains the primary test.
In Parmiter v Coupland (1840), the court held that a statement is defamatory if it exposes the claimant to hatred, contempt, or ridicule.
In Youssoupoff v MGM [1934], the Court of Appeal held that words are defamatory if they cause the claimant to be shunned or avoided by right-thinking members of society, even where no moral blame attaches to the claimant.
Importantly, the statement must be taken in its proper context when determining whether it is defamatory. In Charleston v News Group [1995], the House of Lords emphasised that the statement cannot be assessed in isolation; it must be considered in light of the publication as a whole.
2. Words Referring to the Claimant
The claimant must demonstrate that the defamatory statement refers to them. Where the reference is obscure — for example, where the claimant is given a nickname or is not named directly — the question is whether a reasonable person, reading the statement and aware of the surrounding circumstances, would understand it to refer to the claimant. In J'Anson v Stuart (1787), the court held that where the details of a description give so strong an implication to a reasonable person that they can assume the statement concerns the claimant, the referential element of the tort is made out.
Crucially, it is not necessary for the defendant to have intended the statement to refer to the claimant. If a reasonable person would understand it to do so, this element is satisfied.
3. Words Published
The claimant must show that the statement was communicated to at least one third party. There is no requirement that the statement be published in a formal or widely distributed medium such as a book or newspaper. Any communication to a person other than the claimant will suffice, provided the other elements of the tort are established.
Defences against the Defamation Claim
Even where all three elements are made out, the defendant may escape liability by establishing one of several recognised defences.
Justification Defence
The defence of justification operates where the defendant's statement is factually accurate. If the facts stated are true, this constitutes a complete defence to a defamation claim, regardless of the extent of the damage caused to the claimant's reputation. The rationale is straightforward: the law will not award a remedy for injury to a reputation that the claimant does not in truth possess.
Fair Comment (Honest Comment) Defence
The defence of fair comment applies where the statement complained of is an expression of opinion, rather than a statement of fact, on a matter of public interest. Matters of public interest include the affairs of business, the conduct of public figures such as Members of Parliament, the administration of the State, and the publication of books, newspapers, or the broadcasting of films. In London Artists Ltd v Littler [1969], the court gave guidance on what constitutes a matter of public interest for these purposes.
The defence requires the comment to be "fair." More recently, the courts have restated this requirement as demanding honest comment rather than merely fair comment. In Telnikoff v Matusevich [1991], the court considered the boundaries of the defence, and subsequently in Spiller v Joseph [2010], the Supreme Court confirmed and reformulated the defence in terms of honest comment. This doctrinal development reflects a shift away from an objective standard of fairness towards an enquiry into the defendant's subjective honesty.
The defence will be defeated if the claimant can prove that the defendant's statement was made with malice — that is, with the deliberate intention of harming the claimant rather than expressing a genuine opinion. However, the burden of proving malice lies with the claimant.
Qualified Privilege Defence
The defence of qualified privilege is a broader protection that applies to both statements of fact and expressions of opinion. It is frequently argued by media defendants. Unlike absolute privilege, qualified privilege can be defeated by proof of malice on the part of the defendant.
In Reynolds v Times Newspapers [2001], the House of Lords held that qualified privilege may be available to the press where the subject matter is of serious public concern, the publication is well-researched and balanced, and the person about whom the publication is made has been given a reasonable opportunity to comment before publication. This reflects an attempt by the courts to balance freedom of expression under Article 10 of the European Convention on Human Rights with the right to protection of reputation.
The Impact of the Human Rights Act 1998 on the Tort of Defamation
The enactment of the Human Rights Act 1998 has generated questions about whether the existing law of tort, and defamation in particular, provides adequate protection for rights recognised under the European Convention on Human Rights. Two rights are of particular relevance: Article 8 (the right to respect for private and family life) and Article 10 (the right to freedom of expression).
A significant question arose as to whether the courts needed to develop a new tort of invasion of privacy in order to comply with the obligations imposed by the Human Rights Act 1998. In Wainwright v Home Office [2004], the House of Lords held that the existing body of tort law — including defamation — provides sufficient protection for a citizen's privacy and that it is not necessary to extend the law by creating a new tort of invasion of privacy in order to give effect to Article 8 ECHR. The courts therefore declined to recognise any generalised tort of privacy.
This position means that claimants seeking protection for their reputation and private life must continue to rely upon existing causes of action, including defamation, rather than any freestanding privacy tort. The interplay between the tort of defamation and Convention rights thus remains mediated through the application of existing legal principles, informed where appropriate by the interpretive obligation under s 3 Human Rights Act 1998 and the duty of public authorities under s 6 Human Rights Act 1998 to act compatibly with Convention rights.