Defamation: What is it? And when can you make a claim for damages?

When publishing a statement relating to an individual or organisation, either verbal or written, there is a fine line between exercising your right to freedom of speech and over stepping the line, to give grounds to a defamation claim.

The Defamation Act 2013 ensures that there is a fair balance between the right of freedom of expression and the protection of reputation.

To put this into context, whilst some comments or reviews are completely justified an equal proportion are intentionally defamatory. Online directory or review sites are a natural breeding ground for defamation claims. Many businesses have been on the receiving end of unfounded defamatory comments where disgruntled clients or contacts have left public written comments or reviews which have been posted online to intentionally damage a person or organisation’s reputation.

A requirement under Section 1(1) of the 2013 Act identifies that a statement “is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant”. This so-called “serious harm” requirement has been the subject of interest and speculation.

When determining ‘serious harm’ the court will consider the statement made, how the applicants reputation is damaged and the damage incurred as a result of the publication.

A claimant may rely on a possible inference of serious harm; it is not necessary to prove serious harm, but only on the balance of probability that harm is likely to be caused. Therefore a claimant would only have to satisfy the court of a possibility of harm as opposed to actual harm.

Examples of successful high profile defamation cases include:

1. Melania Trump v Daily Mail (England)
Melania Trump filed a defamation action in the New York state commercial court and in the UK High Court against the Daily Mail over allegations that she previously worked as an escort. Ms. Trump claimed damages in the sum of $150m. The Mail later retracted the statement, published an apology and settled the case for $3m.

2. Monroe v Hopkins [2017] EWHC 433 (QB) (England)
This case concerned two tweets made by ‘controversial’ journalist Katie Hopkins in May 2015 which accused food writer Jack Monroe of desecrating a war memorial. Twitter erupted after a memorial was vandalised with graffiti. Hopkins asked Monroe: “Scrawled on any memorials lately? Vandalised the memory of those who fought for your freedom? Grandma got any more medals?” During the court case, it was reported that Monroe’s lawyer, William Bennett told Mr Justice Warby: “The claimant’s primary case is that by reason of the seriousness of the allegations and the scale of publication, serious harm to reputation has been caused.” Jonathan Price, for Hopkins, told the judge in written argument that her case was that “this relatively trivial dispute arose and was resolved on Twitter in a period of several hours” and argued that “no lasting harm, and certainly no serious harm“, to Monroe’s reputation resulted from it. Monroe was awarded £24,000 in a judgment handed down by Warby J in March 2017.

If you are faced with defamatory posts about you or your business, please contact Else Solicitors LLP for a free no obligation chat regarding the details of your claim. Please contact Andy Rudkin, Partner and Head of Dispute Resolution on andy.rudkin@elselaw.co.uk or call 01283 526239.

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