Defamation Law in England and Wales

Introduction

Defamation law in England and Wales protects reputation — the right of individuals and businesses not to have false statements published that lower them in the estimation of right-thinking members of society. The law was significantly reformed by the Defamation Act 2013, which introduced a new threshold of serious harm and codified the principal defences. The tort of defamation comprises libel (defamation in permanent form, including written statements and broadcasts) and slander (defamation in transient form, such as spoken words).

The Serious Harm Requirement

Section 1 of the Defamation Act 2013 requires that a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant. For a body that trades for profit, serious harm means serious financial loss.

The serious harm requirement was introduced to address concerns about the chilling effect of defamation law on freedom of expression and to reduce the number of trivial claims. In Lachaux v Independent Print Ltd (2019), the Supreme Court held that the question of whether a statement has caused or is likely to cause serious harm is to be determined by reference to the actual impact of the publication, not merely the meaning of the words.

The Meaning of Defamatory

A statement is defamatory if it tends to lower the claimant in the estimation of right-thinking members of society generally, or to cause the claimant to be shunned or avoided, or to discredit the claimant in their trade or profession.

The statement must be published to a third party (the words must be heard or read by someone other than the claimant and the defendant). Publication on the internet is treated as publication in the jurisdiction where the statement is accessed, subject to the defence of innocent dissemination for operators of websites and other intermediaries.

Defences

The Defamation Act 2013 codified and reformed the principal defences to defamation.

Truth (section 2): the defendant has a defence if they can show that the imputation conveyed by the statement is substantially true. The defence replaces the common law defence of justification.

Honest opinion (section 3): the defendant has a defence if they can show that the statement is a statement of opinion, that it indicates the basis of the opinion, and that an honest person could have held the opinion on the basis of any fact that existed at the time of publication or anything asserted to be a fact in a privileged statement.

Publication on a matter of public interest (section 4): the defendant has a defence if they can show that the statement was on a matter of public interest and that they reasonably believed that publishing it was in the public interest. This defence codifies the common law Reynolds defence, established in Reynolds v Times Newspapers Ltd (2001).

Peer-reviewed statement (section 6): a defence for the publication of a statement in a scientific or academic journal, where the statement relates to a matter of scientific or academic interest and has been peer-reviewed.

Privilege (sections 14 and 15, Schedule 1): absolute privilege applies to reports of parliamentary proceedings and court proceedings. Qualified privilege applies to fair and accurate reports of proceedings of public bodies and other matters of public concern.

The Reynolds Defence

The Reynolds defence (now section 4 of the Defamation Act 2013) provides protection for responsible journalism on matters of public interest. The court considers the circumstances of the publication, including: the seriousness of the allegation; the nature of the information; the source of the information; the steps taken to verify the information; the status of the information; the urgency of the matter; whether comment was sought from the claimant; whether the publication included the claimant’s side of the story; the tone of the article; and the circumstances of the publication.

SLAPPs

Strategic litigation against public participation (SLAPPs) are defamation claims brought by wealthy individuals or corporations to silence critics and intimidate journalists, activists, and academics. The Economy Crime and Corporate Transparency Act 2023 introduced provisions to enable the early dismissal of SLAPP claims, and the government has announced further measures to protect freedom of expression.

Remedies

The principal remedy in defamation is damages, which compensate the claimant for the harm to their reputation and for distress and injury to feelings. The court may also grant an injunction to restrain further publication.

The court may make a declaration that the statement was false and defamatory, and may order the defendant to publish a summary of the judgment or a correction. The Defamation Act 2013 introduced a requirement that the defendant publish a statement of the court’s judgment.

Conclusion

Defamation law in England and Wales protects reputation while respecting freedom of expression. The Defamation Act 2013 introduced important reforms, including the serious harm threshold, the codification of defences, and the protection of public interest journalism. The law continues to evolve in response to the challenges of online publication and the threat of SLAPP litigation.