Defamation

Defamation is the tort that protects reputation against false statements. The doctrine has been substantially reformed by the Defamation Act 2013, which (i) introduced a serious-harm threshold (s 1), (ii) replaced common-law justification with a statutory truth defence (s 2), (iii) codified the honest-opinion defence (s 3), (iv) created a public-interest defence based on Reynolds privilege (s 4), (v) introduced specific protections for website operators (s 5), and (vi) addressed the single-publication issue (s 8).

This week studies the post-2013 framework. The orthodox distinction between libel (written or permanent form) and slander (spoken or transient form) remains. The serious-harm threshold has substantially raised the bar for defamation claims, particularly for corporate claimants (s 1(2) — serious financial loss). The post-2017 case-law (Lachaux v Independent Print [2019] UKSC 27) has clarified the operation of the threshold.

The topic connects to W11 (privacy and the post-Naomi Campbell line on misuse of private information), W14 (Article 10 ECHR — freedom of expression as the principal counterweight to defamation), and to the broader law of personal-rights protection.

Defamation has been part of English law since the medieval period. The orthodox distinction between libel (permanent form) and slander (transient form) crystallised in the seventeenth and eighteenth centuries. The principal difference is that libel is actionable per se (without proof of damage) while slander generally requires proof of special damage, with limited exceptions (criminal accusation; unfitness for office or trade; certain disease imputations).

The twentieth century saw extensive doctrinal development. Reynolds v Times Newspapers Ltd [2001] 2 AC 127 established the responsible-journalism qualified-privilege defence; Jameel v Wall Street Journal [2006] UKHL 44 clarified the test. The pre-2013 architecture was: serious harm not required; truth (justification); fair comment; absolute and qualified privilege; Reynolds privilege as the principal modern defence.

The Defamation Act 2013 produced substantial reform. The Act was driven by concerns about (i) the chilling effect of defamation on press freedom (Reynolds was thought too uncertain); (ii) the costs of defamation litigation; (iii) the libel-tourism problem (London as a forum for foreign defamation cases); (iv) the rise of online publication and the difficulty of applying traditional doctrine to the internet. The Act addressed these concerns through the serious-harm threshold, the public-interest defence (replacing Reynolds), and procedural reforms.

(1) Serious harm threshold. Section 1 of the Defamation Act 2013: a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant. For body-corporate claimants trading for profit, ''serious harm'' means serious financial loss (s 1(2)). The threshold has substantially raised the bar (Lachaux v Independent Print Ltd [2019] UKSC 27).

Five graded practice questions in the panel below.

See the Further Reading panel for Mullis and Parkes on Gatley, the post-2013 academic commentary, and the Lachaux analysis.