Brand Protection: Defamation

THIS ARTICLE WAS ORIGINALLY PUBLISHED IN THE MARCH QUARTER EDITION OF THE CHAMBER OF COMMERCE MAGAZINE

Defamation is a publication to a third party of an untrue statement against a reputation exposing the claimant to hatred, contempt or ridicule in the eyes of right thinking members of society. It is governed by common law and statute under the Defamation Act 2013 and covers two areas, Slander (publication in a temporary form, e.g. by spoken word) and Libel (publication in permanent form, e.g. online or in print). Do the words given their ordinary and natural meaning damage the claimant’s reputation.

Slander requires: (1) Accusation, (2) Proof of special damage, (3) Identifiable individual(s), (4) Statement which causes someone to think less of the claimant.

Libel: (1) Anything that can be “recorded”, (2) Identifiable individual(s), (3) Statement which causes someone to think less of the claimant.

Under section 1 of the 2013 Act a statement if a claimant cannot establish “serious harm” to the claimant’s reputation, there is no defamation. In order for legal entities to bring an action for defamation, the serious financial loss must be evidenced.

Penalties include: Damages and Injunctions preventing further publication.

Any individual, class of individuals, legal entity (e.g. a company or charity but not a Governing or Political body), Trade Union may bring an action for defamation. Claimants have only one year from the date that the material surfaced to bring an action i.e. ASAP!

There are several defences, namely: Truth, Honest Opinion (previously known as “fair comment”), absolute and qualified Privilege, Public Interest, Innocent dissemination (covering those who are not the author, editor or publisher), Consent (including if the individual accepts an apology, and if one is an Operator of a website who did not post the content himself (unless he failed to remove the post when requested).

Jonathan Abrams is a Corporate and Media Law Partner at Gregory Abrams Davidson LLP. Contact Jonathan about Media Law legal matters at jabrams@gadllp.co.uk or call 0151 236 5000

Also, please view our Brand and Reputation Management specialist business: Brand Asset Protect for further information about Reputation Management.