Defamation
While actions in defamation used to be the preserve of the rich and famous, with the growth of social networking sites, it is becoming increasingly common for individuals or companies to find they have been defamed on the worldwide web.
Defamation can be defined as the publishing of a statement which lowers the individual or the company in the estimation of right thinking members of society generally. Broadly, the test is whether a statement would cause someone to think less of the person or company to whom it refers.
A statement that amounts to a mere insult or abuse will not be defamatory as this is unlikely to cause real damage to a reputation.
Defamation can be divided into libel and slander. If the publication is in a permanent form, for example in a newspaper, book or film, the defamation is libel. If the publication is in a transient form ie. speech, it is slander.
The main practical difference between claims for libel and claims for slander is what a claimant must prove to succeed in his or her claim. In libel claims, loss and damage are presumed. In contrast, in claims for slander the claimant must prove actual damage (though there are certain exceptions to the rule).
There are, of course, defences to defamation, namely justification (or ‘truth’), fair comment, privilege and ‘the public interest’ defence.
The remedy for defamation is damages, to compensate a claimant for hurt feelings and to go some way towards repairing the harm caused to the claimant’s reputation. Injunctions to either prevent the publication of defamatory material in the first place or to prevent its further publication are also often sought.
Unlike most civil cases, juries usually hear defamation claims though the Judge is permitted to give strong guidance especially as to the level of damages that should be awarded.
It is often not cost effective to go all the way to trial and therefore an out of court settlement (usually with an apology and undertakings not to publish any further defamatory comments) is generally regarded as a sensible approach to this type of claim. It is our job to assess the potential claimant’s needs in each case and take whatever action is appropriate.