Defamation – Developments in the Law on Reputation

What do Psychic Sally, Cameron Diaz and McDonald’s all have in common? Each has had a brush with the UK laws on defamation. We will consider the merits of each of their cases below and review whether the law on defamation is useful to the ordinary person or just a tool used by the wealthy to suppress free speech. We will also review the effect of the recent changes to the law made by the Defamation Act 2013, which came into force in England and Wales on 1 January 2014. 

What is defamation? Defamation is a false statement made by one individual about another. This statement attempts to discredit that person’s character, reputation or creditworthiness. In order to be defamatory, such a statement must be communicated to at least one other person. If such a statement is spoken, then it is described as slander. If it is written, broadcast or shown in a film, it is described as libel. In line with the changing ways that people communicate, statements will include things said in emails, on the web, or through online forums, social media or blogging sites. 

Something is defamatory if it: 

•    Lowers someone in the estimation of right-thinking members of the public; and/or
•    Causes a person to be shunned or avoided; and/or
•    Disparages them in their office, trade or profession; and/or
•    Exposes them to hatred, ridicule or contempt.

Just insulting someone is not enough, so insulting someone to their face would not entitle them to sue. 

If you are accused of defaming someone’s character, the most obvious defence would be that the statement was true. It can also be a defence to say that the statement was fair comment and in the public interest, or simply that the words used would not be likely to harm someone’s reputation. If you can show that a statement was your honest opinion that is genuinely held, then this may also be a defence. 

Now that we have an idea about the basis of the law of defamation, let us consider some recent examples of famous defamation claims. Probably the most famous case was McDonald’s Restaurants v. Morris & Steel. This case became known as the “McLibel” trial, and having taken ten years to resolve, it was also the longest-running case in English history. Morris and Steel were environmental activists who published a leaflet alleging McDonald’s sold unhealthy food and exploited its workforce. The case was “won” by McDonald’s but caused the company huge embarrassment. It also led to criticism that the UK defamation laws hindered free speech and showed the “David and Goliath” nature of claims brought by big corporations with huge resources against private individuals of limited means.

Another recent case involved the Daily Mail being sued by Psychic Sally. The newspaper labelled her a fraud. The issue was not about whether she had the power to speak to the dead but whether the Daily Mail could prove their claims that she planted people in the audience to obtain information about the crowd. The newspaper could not prove these claims, and thus they were liable.

A final case to consider is that of Cameron Diaz vs. The Sun. The newspaper took a photograph of Diaz with her friend Shane Nickerson, claiming that they were enjoying more than just a long-standing friendship. Both were in relationships with other people at the time, and the claim caused great distress to both couples. The Sun failed to prove their case on the basis of the single photo, so again the newspaper lost.
 
High-profile cases such as these and lottery-size awards of damages had made the UK the libel capital of the world. It was because of the problems with the law of defamation that a number of changes were made in the Defamation Act 2013. These changes included restrictions on when a jury could be used in a defamation trial, requirements for a claimant to show that the defamation caused “serious harm” to their reputation, and improvements to the defence of telling the truth and providing an honest opinion. The procedure for bringing a defamation claim remains unchanged, with the claim having to be made in the High Court. As with any type of civil claim, there is a strict time limit of one year from the date of the defamatory statement to make a claim.

These changes are welcome, but bringing a defamation claim remains expensive and risky, so what steps can be taken to avoid court? The first practical step is to ask for an apology. It is always a good idea in any litigation to show that you are trying to be reasonable, and a simple request for a verbal or written apology may resolve the issue. A further step that applies to all types of litigation, including defamation claims, is to be willing to offer some form of alternative dispute resolution such as mediation or arbitration. A final alternative to bringing a civil claim is to bring a complaint to any relevant governing body or trade association. For example, there is the Press Complaints Commission, the Broadcasting Standards Commission, the Advertising Standards Authority or Ofcom, which would all have formal complaints procedures that should be followed before any claim is made. Whether the law of defamation as amended will make the law fair for both the rich and poor and protect an individual’s right to free speech may still take a number of years to assess. If the laws meant to protect reputation remain unfair, then it will be the UK’s reputation for justice that will be tarnished in the long run. 

Image by Tony Shek (Flickr) [CC BY 2.0 (http://creativecommons.org/licenses/by/2.0)], via Wikimedia Commons.