The price of defame: defamation claims and remedies

Posted: 20/09/2022

A claim for defamation arises when there has been publication of untrue allegations to third parties which name or identify the claimant and which has caused, or is likely to cause, serious harm to their reputation. Establishing the meaning of the words complained about is always the first step. Generally, libel is the written word - although it includes TV, radio broadcasts and publications on the internet - while slander is the spoken word, and can, in certain circumstances, include non-verbal gestures or actions.

A body trading for profit does not have ‘feelings’ so to prove serious harm has been suffered, it needs to show it has sustained, or is likely to sustain, serious financial loss as a result of the allegations. The position in relation to non-trading corporations is that they too have a reputation which the law protects. Therefore, a charity, although it does not trade for profit, can sue in respect of a statement which may discourage donors or subscribers, or otherwise impair its ability to carry out its charitable objectives. 

Educational institutions are especially vulnerable to potential reputation management issues. Students or parents make allegations about members of staff; students make allegations about each other. Staff sometimes make allegations about other colleagues. And, of course, the media sometimes publishes allegations about conduct within schools or universities or the staff or students within them. Meanwhile, there is always the tinnitus-like background noise of social media which is virtually impossible to control unless one has unlimited resources.

So, what should you do before publishing material to third parties? And if you or your organisation find yourself at the centre of a media storm, how can you help to stop it raining (or at least put up an umbrella)?

Time is always of the essence so seeking prompt specialist advice can help to avert or dilute the potential reputational damage. Legal fees are always a distress purchase, but significant money and management time can be saved if a sensible specialist is involved at an early stage.

Prevention is better than cure

You cannot easily control what other people choose to say or publish about each other, but you can take some simple steps to reduce the prospect of you or your organisation publishing something defamatory:

• Inform your staff of the legal risks and consequences associated with failing to carefully consider what is published online or elsewhere. Publish in haste and repent at leisure!
• Fact-check any statement relating to any individual or organisation which you publish. Truth is a complete defence to a claim for libel – but the burden of proof is on the party who makes the statement.
• Consider in particular the meaning of any statement that is due to be published by you, or your organisation, to third parties, especially if it is making any sort of allegation about any individual. ‘If in doubt, leave it out’ is quite a good rough and ready rule. Despite what you hear on ‘Have I Got News For You’, just adding the word ‘allegedly’ does not save you from liability.
• Honest opinion is another defence, but to succeed the statement complained of must clearly be an expression of opinion, must indicate the basis of the opinion, and must be an opinion an honest person could have held on the basis of any fact which existed at the time.
• Before you share any publication written by someone else, consider whether you are sharing defamatory material. You do not escape liability on the basis you were simply repeating what someone else had said.

What to do if the media spotlight turns on your organisation?

In these circumstances, one cannot usually completely escape some unwanted and unflattering media attention, but by taking some common sense steps one can at least hope to exercise a measure of control over the situation:

• Stay alert to events which may generate media attention. If you have a communications director they should be doing this as a matter of course.
• If you are telephoned or doorstepped by a journalist, don’t get drawn into an on the spot interview. Instead, politely ask them to send you the questions they want you to answer in an email. This eliminates the prospect of being caught off guard and giving an answer you may live to regret. It also creates a paper audit trail so one can track what happened and when - very useful if things end up in any sort of legal action. And, of course, it provides the opportunity to give considered answers to the media questions.
• Identify one person as your point of contact with the media and make sure all enquiries, approaches and developments are fed into him or her. A well-established journalistic technique is to divide and rule by approaching different people in the same organisation, and then exploiting inconsistent or contradictory positions. If they are confined to dealing with one person that reduces the prospect of the organisation looking like a leaky ship.
• If the subject matter of the story could give rise to potential legal or disciplinary action or issues, then make sure you involve your lawyers at an early stage so that the information you put out to the media does not land you in a bigger mess – through breach of confidentiality, invasion of privacy, libel or otherwise. Your lawyers can also take steps to correct inaccurate, misleading or distorted coverage and curb intimidating or harassing conduct by journalists (at least in the mainstream media) through complaints under the Independent Press Standards Organisation (IPSO) code of conduct.
• Accept that you cannot deal with everything which is published. The internet is an open-ended global publication tool and online coverage of newsworthy stories can seem relentless and overwhelming. However, most of it goes unread so concentrate on the most credible mainstream publishers and trust the average reader to sort the wheat from the chaff.
• Draw some comfort from the fact that the mainstream media is trying to prove that it has reformed itself following the Leveson Inquiry and does not need to have statutory control imposed on it. It is also aware of the traction which Trump’s dismissal of much of the mainstream media as ‘fake news’ gained with large swathes of the population who have become sickened by, and cynical about, the media’s arrogance and agendas. Therefore, the mainstream newspapers and broadcasters are trying to show that they really are responsible and trustworthy, and so are more responsive to complaints now than they were in the past, as well as trying to play by the legal rules. This may not last so take advantage of it while you can!

Finally, don’t allow yourself to be drawn into a war of words with an opponent. It allows the media to rub their hands, stand back and enjoy the show, and it can give ‘legs’ to a story which would otherwise be a one day wonder. Open, honest and boring communication with the media is the best way of curtailing the length of time you and your organisation spend in the spotlight!

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