A statement that damages someone’s reputation may be defamatory, but the law in England and Wales sets a threshold before a claim can succeed and gives defendants several statutory defences. The main rules are in the Defamation Act 2013, which came into force on 1 January 2014, and the key limitation rule is in the Limitation Act 1980. This guide covers England and Wales only; Scotland and Northern Ireland have separate defamation law.
The serious harm test
Section 1 of the 2013 Act provides that a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant. A body that trades for profit faces a tougher test: harm to its reputation is not serious harm unless it has caused or is likely to cause the body serious financial loss. The section extends to England and Wales.
Truth
Section 2 makes it a defence for the defendant to show that the imputation conveyed by the statement is substantially true. Where a statement conveys two or more distinct imputations and one or more cannot be shown to be substantially true, the defence does not fail if the imputations that are not shown to be true do not seriously harm the claimant’s reputation, having regard to those that are. The old common law defence of justification is abolished.
Honest opinion
Section 3 provides a defence of honest opinion, which replaced the common law defence of fair comment. Three conditions must be met: the statement must be a statement of opinion, it must indicate, in general or specific terms, the basis of the opinion, and an honest person could have held the opinion on the basis of a fact that existed when the statement was published or anything asserted to be a fact in a privileged statement published earlier. The defence is defeated if the claimant shows that the defendant did not hold the opinion. Where the defendant published but did not write the statement, it is defeated if the defendant knew or ought to have known that the author did not hold the opinion.
Publication on a matter of public interest
Under section 4 it is a defence for a defendant to show that the statement was, or formed part of, a statement on a matter of public interest, and that the defendant reasonably believed that publishing it was in the public interest. The court must have regard to all the circumstances and must make such allowance for editorial judgement as it considers appropriate. Where the statement was an accurate and impartial account of a dispute to which the claimant was a party, the court must disregard any omission by the defendant to verify the truth of the imputation when deciding whether the belief was reasonable. The defence applies to statements of fact and of opinion, and the common law Reynolds defence is abolished.
Website operators and user comments
Section 5 addresses claims against the operator of a website over a statement posted on it. It is a defence for the operator to show that it was not the operator who posted the statement. The defence is defeated if the claimant shows three things: it was not possible to identify the poster, meaning the claimant lacks enough information to bring proceedings against that person; the claimant gave the operator a notice of complaint; and the operator failed to respond to that notice in accordance with regulations. The notice must give the complainant’s name, set out the statement and explain why it is defamatory, and say where on the website it was posted. The defence is also defeated if the operator acted with malice, but it is not lost merely because the operator moderates comments.
The one-year time limit
Defamation is treated differently from most civil claims. Section 4A of the Limitation Act 1980 disapplies the usual six-year period for tort claims and provides that no action for libel, slander or malicious falsehood may be brought after one year from the date the cause of action accrued. Section 8 of the 2013 Act adds a single publication rule: if a statement is published to the public and later republished in substantially the same form, the time limit for the later publication runs from the date of the first, unless the manner of the later publication is materially different. The court can consider matters such as the prominence given to the statement and the extent of the later publication. The general steps before issuing proceedings are covered in the guide to pre-action protocols.
FAQs
Is an untrue statement automatically defamatory?
No. Under section 1 the statement must have caused, or be likely to cause, serious harm to the claimant’s reputation, and a for-profit body must show serious financial loss or the likelihood of it.
Can an opinion be defamatory?
It can be, but section 3 gives a defence of honest opinion where the conditions are met, including that the statement indicated the basis of the opinion.
Who should be consulted before bringing or defending a claim?
Defamation claims turn on detailed rules and deadlines, so a solicitor with relevant experience should be consulted; the guide to checking a solicitor is regulated explains how to verify one.
The bottom line
Under the Defamation Act 2013 a statement must cause or be likely to cause serious harm to reputation before it is defamatory, and defendants can rely on truth, honest opinion, publication on a matter of public interest and, for website operators, a defence tied to the identity of the poster. The Limitation Act 1980 allows only one year to sue for libel or slander in England and Wales. This is general information, not legal advice.
Sources
- legislation.gov.uk, “Defamation Act 2013, section 1: Serious harm”
- legislation.gov.uk, “Defamation Act 2013, section 2: Truth”
- legislation.gov.uk, “Defamation Act 2013, section 3: Honest opinion”
- legislation.gov.uk, “Defamation Act 2013, section 4: Publication on matter of public interest”
- legislation.gov.uk, “Defamation Act 2013, section 5: Operators of websites”
- legislation.gov.uk, “Defamation Act 2013, section 8: Single publication rule”
- legislation.gov.uk, “Limitation Act 1980, section 4A: Time limit for actions for defamation or malicious falsehood”