UK Defamation: Legal Overview
UPDATE: Parliament passed the Defamation Act of 2013. The law went into force on 1/1/2014.
UPDATE: 2015. Scotland has begun looking at its slander and libel laws to bring them more in line with the revised UK defamation laws.
Elements of Defamation in UK
UK Defamation Statute of Limitations
Prior to the Defamation Act of 2013, the Defamation Act of 1996 governed slander and libel law in England and Wales. Under Articles 5 and 6 of said act, “no such action for defamation shall be brought after the expiration of one year from the date on which the cause of action accrued.”
How To Win A Defamation Lawsuit in the UK
In order for a claimant to succeed in a defamation lawsuit, the following must be true:
- The statement in question must be a negative false statement of fact;
- The statement in question identifies or refers to the claimant;
- The statement in question was published.
Slander v. Libel in the UK
There are two forms of defamation: libel and slander. Libel is published defamation, while slander covers defamatory statements in transient forms, such as speeches. Forms of UK defamation include:
- Print ;
- Broadcast (Broadcasting Act of 1990);
- Film or Videos;
- Internet; and
- Statements made during public performances of a play (Theaters Act of 1968).
Under UK law, the important issue to consider is not how the defamatory statement makes the victim feel, but the impression it’s likely to make on people reading it.
Publication and Re-Posting Defamation in the UK
Publication over the Internet occurs when a reader accesses the text. This means that a fresh publication takes place every time someone reads the material. (see Loutchansky v. Times Newspapers Ltd. (No. 2) .)
A claimant isn’t necessarily required to prove someone read a story, but if the defendant can bring evidence that it had not been read, or read by a very few people within the court’s jurisdiction, such a defendant may avoid liability.
In Jameel v. Wall Street Journal , the Wall Street Journal was able to prove that a defamatory article had only been downloaded by five people in the U.K., which included the claimant’s lawyer. The courts ruled that there had been “no substantial publication” in the U.K.
However, in Loutchansky v. Times Newspapers Ltd. (No. 2) , the judge concluded there was a “reasonable inference” that the material had been read in the U.K. since the Times’ website enjoys 12.5 million visits a month. That said, under Regulation 19 of the 2002 Electronic Commerce (EC Directive) Regulations, websites and ISPs are not liable for damages if they:
- Didn’t know the material under review was defamatory;
- Were not aware of the circumstances or facts which would have told them it was defamatory; and
- Acted quickly to remove access to the material once they did know.
Who Can Sue For Defamation in the UK?
In the UK, individuals, legally incorporated businesses and association can sue for slander or libel. Elected authorities cannot sue for defamation over issues relating to their governmental or administrative functions, but they may sue for malicious falsehood. A member of a political party may also sue for libel over defamatory statements about the party which reflect on their personal reputation.
Defamation Defenses in UK
Acceptable defenses in a U.K. defamation case are:
- Justification (truth);
- Qualified Privilege (defendant did not act with malice; reporting of proceedings in a foreign court);
- Reynolds Privilege (subject matter was sufficiently in the public interest, journalists researched carefully and behaved responsibly);
- Absolute Privilege (fair and accurate reporting of domestic court proceedings); or
- Fair Comment (matters of legitimate public concern that constitutes a comment, rather than a statement of fact, which an honest person could make on those matters [i.e. critique or film review]).
Jury or Judge Under UK Defamation Law
In the UK, most defamation cases are settled out of court. If parties can agree, the jury can be dispensed in favor of a single judge. There are statutory provisions permitting a trial by a judge alone, if the case involves a significant number of documents or complex technical issues.
Libel Tourism and the UK
Why is the UK known as the “libel tourism” capitol of the world? Aside from a “no win, no fee” contingency, damages awarded to libel claimants are high. As the term suggests, libel tourism is the practice of non-UK citizens or companies using UK courts for defamation cases because existing laws in the British Commonwealth favor plaintiffs. However, since the passing of the UK Defamation Act of 2013, libel tourism is expected to decrease.