Business Defamation | Claims, Remedies and Defences Explained
Business defamation may be committed by way of libel, made in a permanent form, such as writing or broadcasting, or slander, which has no permanent record and may be made through a speech or gestures.
In seeking to protect the reputation of both individuals and corporate bodies, the law imposes differing criteria to be proven by a claimant. When seeking to prove defamation against an individual, the claimant is required to demonstrate that he or she had suffered serious harm to their reputation.
When a corporate body is looking to bring a claim for defamation, section 1 of the Defamation Act 2013 requires that it must also be shown that the harm to the reputation had also caused, or is likely to cause, the corporate body, serious financial loss. The intent behind this additional requirement is to deter wealthy corporate bodies, despite having suffered no significant financial loss, from pursuing consumers simply to discourage or restrict their freedom of speech.
Defamatory conduct can impact the reputation of a business which can be severe and long-lasting. Reputational harm may lead to financial losses as unjustified negative publicity may drive away customers and investors and permanently tarnish the business’s image.
Stuart Southall of KANGS comments generally upon the law of defamation, potential remedies and defences available to a business subjected to or accused of defamatory acts.
The Relevant Law | Defamation Act 2013
The Defamation Act 2013 (‘the Act’) provides:
S.1 Serious harm
- A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.
- Harm to the reputation of a body that trades for profit is not ‘serious harm’ unless it has caused or is likely to cause the body serious financial loss.
Types of Defamation
As stated above, defamation may arise by libel or slander.
What is Libel?
Libel – defamatory statements in a tangible, permanent form such as newspapers, online articles, social media posts, business reviews, or advertisements.
What is Slander?
Slander –defamatory statements which are not written and may be for example, gestures or spoken during radio broadcasts, television interviews, or casual conversations.
Elements Required to Prove a Defamation Claim
To successfully pursue a defamation claim, a business must establish the following elements:
False Statement: The defamatory statement must be false. Opinions, even if negative, do not typically constitute defamation unless they falsely imply a factual assertion.
Publication: The claimant must show the words complained of, have been published by the defendant to at least one third party or that the defendant is responsible for the publication. This can occur through spoken conversations, printed materials, social media, websites, or any other form of mass communication.
Harm: The statement must have caused, or is likely to cause, serious financial loss.
Negligence or Malice: If the alleged defamation is directed at a private business, negligence in making false statements may be sufficient grounds. However, if the business is a public entity or figure, proof of actual malice, meaning the statement was made with intentional harm or reckless disregard for the truth, may be necessary.
Defamation Remedies
A corporate body or business that trades for profit may seek redress in several ways.
Apology, Retraction and correction
In many instances, a business which has been defamed simply wishes to protect its reputation by obtaining an apology, a retraction and a corrective statement. This may be achieved by sending a ‘cease-and-desist letter’ to the defamatory party requiring that it stops making false statements, removes existing false statements, issues accurate information together with a public apology.
Court Proceedings
If an informal approach to resolve the issue fails, it may be necessary to engage a defamation solicitor and issue formal court proceedings seeking:
- monetary damages for financial losses incurred,
- a court-ordered retraction, or
- an injunction to prevent further defamatory statements.
Note:
- It is unlikely that the court will issue an interim injunction to a claimant if a defendant seeks to rely on a substantive defence.
- However, an injunction may be granted to prevent further or future publication if the claimant is successful at trial.
Publication of a judgment summary in open court
Section 12 of the Defamation Act 2013 provides:
- In proceedings where the claimant is successful, the court may order the defendant to publish a summary of the judgment.
- The wording, timing, manner of form and place are for the parties to agree, failing which the issues will be resolved by the court.
Statutory Defences
The Defamation Act 2013 provides several potential defences.
Truth
When the defendant can show that the imputation conveyed by the statement complained of is substantially true.
Honest opinion
This provides a defence where the statement complained of was a statement of opinion, which indicated the basis of the opinion where an honest person could have held that opinion on the basis of:
- any fact which existed at the time the statement complained of was published
- anything asserted to be a fact in a privileged statement published before the statement complained of.
However, the defence is defeated if the claimant shows that the defendant did not hold the opinion.
Publication on matter of public interest
It is a defence when the defendant can show that:
- the statement complained of was, or formed part of, a statement on a matter of public interest and
- the defendant reasonably believed that publishing it was in the public interest.
Operators of websites
An operator of a website may have a defence where it can be shown that it was not the operator who posted the statement but the defence will be defeated where the claimant can show:
- it was not possible for the claimant to identify the person who posted the statement,
- the claimant gave the operator a notice of complaint in relation to the statement,
- the operator failed to respond to the notice of complaint in accordance with any provisions contained in regulations.
How Can We Assist?
Pursuing an action for alleged defamation against either an individual or a business for profit/corporate body in the UK presents substantial technical hurdles and, potentially, enormous cost which are, generally, only justifiable in the most extreme situations.
The team at KANGS provides considerable experience in the conduct of such proceedings on behalf of Claimants seeking redress for damages caused by defamatory statements, as well as defending those accused of defamation. Our defamation solicitors are regularly involved in negotiating amicable settlements between opposing parties without the inevitable delays and cost of trying to satisfactorily resolve all issues through the courts.
Should you be involved in any issues involving any alleged defamation of any nature, please do not hesitate to contact our team who would be delighted to hear from you.
Tel: 0333 370 4333
Email: info@kangssolicitors.co.uk
We provide initial no obligation discussion at our three offices in London, Birmingham, and Manchester. Alternatively, discussions can be held through live conferencing or telephone.
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