What is defamation?
Defamation is a loss of reputation caused by false statements made about a person or a business.
There are two types: libel and slander.
What is the difference between libel and slander?
The difference between the two is commonly explained with reference to how they arise: we are told written defamation is libel; and spoken (oral) defamation is slander.
A libellous statement could therefore take forms such as a statement written in a newspaper or published on a website, while a slanderous statement might be an oral statement made in a public speech, or a disparaging comment made in a private that is later reported in public.
In law, however, the difference between the two actually lies in the concept of existential permanence, that is whether the statements will stay in the relevant public domain for a sufficiently long period of time.
Libel therefore becomes a loss of reputation that is maintained over a long period as a result of a false statement, whereas slander occurs in a short period.
In order for damage to be sustained, the statement needs to exist in a sufficiently permanent form. Historically, writing has been the most common medium for record.
Nowadays, video and audio recordings could be argued to be equally and sufficiently permanent.
Where it is published also determines permanence. An unrecorded private conversation is not likely to be considered as permanent; whereas a recorded interview that is broadcast internationally and intended to be archived is likely to be considered as permanent.
The domain where the statement remains permanent is also importance. Permanence in a private archive, to which only a couple of people have access not likely to cause sustained loss, whereas permanence in public records that millions of people are likely to access is much more likely to cause longer term damage.
Proving libel or slander
To establish that somebody has made a defamatory statement against you or your business (to have a realistic chance of winning in court), you need to prove the following.
The statement is false or untrue
Falseness of a statement is the core element for it to be regarded as defamatory.
You have been damaged
After the introduction of Defamation Act 2013 it has become necessary to prove that as a result of the statement being made (and not any other reason) you have suffered damage. This may be a loss of business, a refusal by someone else to enter into a valuable contract with you, or generally, damage to your reputation.
The latter might be shown as receiving abuse (verbal or physical) from other people, or avoidance by others.
Damages for a business generally have to be financially quantifiable.
Seditious libel
Sedition means incitement or contempt against a ruler or the government.
Seditious libel (making untrue statements with the intent to incite uprising) was a common charge against anyone who was critical of the state or who posed a threat to ruler at that time.
Defences to defamation
If someone claims you have made a defamatory statement, then your defence falls to establishing the following:
True statement
That your statement is totally true both in substance and in fact.
Statement in the interest of the general public
You might also take a defence that the statement was made in public interest and the statement was totally based on facts; for example, a statement made about a restaurant’s poor hygiene that caused a child to suffer from food poisoning.
Because such statements are made to benefit the general public from any inconvenience or harm so, such statements even if they cause damage to reputation of a person or business cannot be regarded as defamatory.
You might establish that the statement was made with no malicious intent but rather simply for the information of the general public, and that the aim was merely to make people generally aware of the fact attached to the statement.
Not published as author
You might alternatively take the defence that the published statement was neither made by you as an author nor in your belief that you assisted in the publication of a defamatory statement.
This may be a stronger argument if subsequently you have made an offer for amendments in the publication.
This last point is important. If you allow other people to contribute to your newspaper or your website (such as in the comments to an article) without moderation or a chance for rebuttal, you could be assisting the publication of their defamatory statement.