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Whilst “phone hacking” is not strictly within the field of libel, this area of media Law has been an almost daily topic in the news for many months, now involving not only the rich and famous, but also ordinary people and has led to the high profile Leveson enquiry. Even the acquittal of Amanda Knox, the American student accused of the murder of her roommate Meredith Kercher, has led to cries by her lawyer, that she should also be acquitted of being slandered.
What is Slander?
This involves using oral defamation which is speech, by one party stating something untruthful which harms the reputation of the person or business defamed. The statement has to be made to a third party. It is not sufficient to simply say something directly to the person affected which is hurtful and untruthful unless it is overheard by a third party.
What is Libel?
This is the written form of defamation where the defamatory words are written or printed and can even involve pictures. Essentially it is in any forms other than spoken words or gestures. Libel involves tangible evidence of defamation in the form of printed words, although in slander actions it easy for someone to deny that they actually used the alleged defamatory words.
Libel is growing due to the increase use of the internet and social websites, and is increasingly affecting ordinary individuals and small to medium businesses.
What is Malicious Falsehood?
A person who has been libeled or slandered can pursue another party who has negligently made a statement believing it to be true. Malicious Falsehood is a higher level of defamation, where the person making the statement did so maliciously knowing it to be untrue, which can increase the damages which may be awarded by the court.
So What Happens If I Have Been Defamed?
Normally a lawyer will write a letter before action asking for a withdrawal of the statement, an apology, possibly threatening an injunction and seeking damages and legal costs to be paid. Proceedings may follow seeking the remedies outlined above in the absence of a satisfactory response or apology and withdrawal of the statement. A unique feature of Defamation is that it is the only area of civil law which survives with the decision usually being made by a Jury, although a Judge can hear an action without a Jury in certain circumstances.
The jury is required to decide the ordinary meaning of the words to a lay person (as opposed to a lawyer) and they decide whether the words are defamatory and whether a person’s reputation has been affected. They also decide the amount of the damages which are awarded to a successful party. These are often high. How do you compensate a famous multimillionaire who has been exposed to a million newspaper readers reading a defamatory article where the newspaper has refused to withdraw and apologise leading to the need for lengthy legal proceedings? Quite simply a Jury will see a £10,000 reward as being inappropriate, which has led to high profile awards. At the other extreme, an ordinary person who has been slandered to a few individuals with a quick withdrawal and apology is likely to receive much less.
If you wish to issue proceedings, then you must do so within one year of the date of the defamatory act, although the right may continue where this is published repeatedly, for example remaining on the internet indefinitely.
What do I do if I have defamed someone?
If it a statement is untrue your lawyer should negotiate terms involving a withdrawal and apology. The sooner you do this the better. If you can justify the statement as being true then this there may be a Defence of Justification. Likewise, even if it is untrue it can be argued that the untruthful statement has not materially affected the reputation of a person (as their reputation may already be poor). Damages will be higher if an untruthful statement is not quickly withdrawn (with an apology), as the defamed person’s reputation will continue to suffer, and damages can be increased further due to the extra stress caused by having to pursue lengthy legal proceedings.
There can be other defences to libel, for example there are defences of absolute or qualified privilege, which can attach to statements made in parliament, or statements in court and these defences are for public policy reasons. For example someone should not be concerned that they may be sued for making untruthful statement in court, as it could in itself concern people that they may be sued for making an honest statement. An untruthful statement in court can still be punished, as if proved to be false then this would be contempt of court and/or perjury with criminal sanctions.
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