Defamation of Character: Key Elements

To succeed in a defamation claim, the claimant must establish the following key elements:

1. Defamatory Statement: The statement made must lower the claimant’s reputation in the eyes of a reasonable person. The judge must determine “whether the behaviour or views that the offending statement attributes to a claimant are contrary to common, shared values of our society”: Monroe v Hopkins [2017] EWHC 433 (QB). In terms of businesses, a defamatory statement must cause loss of customers, harm to trade, or damage to business.
2. Serious harm: The “serious harm” requirement of The Defamation Act 2013 (“DA 2013”) builds upon a number of pre-2013 authorities which decided that it was necessary for a “threshold of seriousness” to be reached before a statement would be considered defamatory. To be defamatory, the imputation must be one that would tend to have a “substantially adverse effect” on the way that people would treat the claimant: Thornton v Telegraph Media Group Ltd [2010] EWHC 1414 (QB). The purpose of the threshold of seriousness was to avoid the courts being troubled with complaints of a trivial nature. The Supreme Court visited section 1 of the Defamation Act 2013 in the case of Lachaux v Independent Print Ltd and Evening Standard Ltd [2019] UKSC 27. In this case, the Supreme Court agreed with the Court of Appeal’s decision in that the defamatory statements did in fact meet the threshold of “serious harm”.
3. Falsity: The statement must be false. If the statement is true, it cannot be defamatory, even if it harms the person’s reputation.
4. Publication: The statement must be published to at least one person other than the claimant. Publication includes distribution through newspapers, television, online platforms, and social media, to name a few examples.
5. Identification: The statement must be shown to refer to the claimant. The defamatory statement can be directly or indirectly about the claimant, even if they are not named explicitly.

Limitation

The limitation period to bring a defamation claim is usually one year. There is discretion under the Defamation Act 1996 and section 32A of the Limitation Act 1980, for the court to disapply the limitation period in certain circumstances. This discretionary exclusion of the limitation period will be decided by the court, by considering the circumstances of the case and the following points:

• The length of the delay and the reasons for it.
• Where the delay was caused by the claimant not knowing all of the facts relevant to the case, when the claimant became aware of those facts and the extent to which they acted promptly and reasonably to pursue the matter once they became aware.
• The extent to which the delay has caused prejudice to the defendant owing to lack of or less cogent evidence.

Lydia Jeffels – LydiaJeffels@chadlaw.co.uk

Joshua Smith – JoshuaSmith@chadlaw.co.uk

Asma Iqbal – AsmaIqbal@chadlaw.co.uk

Kathryn Hunt – KathrynHunt@chadlaw.co.uk