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Defamation

Legally reviewed by:
Wyn Legal team

Defamation covers both libel and slander. Both relate to the publication of defamatory material, which is material that adversely affects a person’s reputation. The distinction between the two is that libel concerns “lasting” forms of publication such as print, online or broadcasting. Slander concerns more transient forms such as spoken word or gestures.

A statement is not defamatory unless its publication has caused or is likely to cause “serious harm” to the reputation of the victim. The threshold for “serious harm” is relatively high. A statement may be considered to cause “serious harm” where it is likely to cause serious financial loss or substantially affects the attitudes of others towards that person. 

The victim must also establish that the words complained of are published (i.e. communicated) to a third party and that the potential defendant published or is responsible for the publication of the words. 

The victim must prove that the words complained of were published about them. This is straightforward if the claimant is named or clearly identified.

A claim must be brought within one year from the publication’s date. The court may is limited circumstances disapply the limitation period in certain circumstances which include (but are not limited to):

  1. The length of the delay and the reasons for it.
  2. Where the delay was caused by the victim not knowing all of the facts relevant to the case, when the victim became aware of those facts and the extent to which they acted promptly and reasonably to pursue the matter once they became aware.

It is important to note that there are certain defence to a defamation claim which include (but are not limited to):

  1. Truth – Where the defamatory statement is true.
  2. Honest opinion – Where the statement complained of was a statement of opinion, the statement indicated the basis of the opinion and an honest person could have held this opinion based on the facts that existed at the time the statement was published.
  3. Public Interest – Where the statement complained of, or formed part of, a statement on a matter of public interest or the defendant reasonably believed that publishing the statement complained of was in the public interest.

The remedies available for defamation are damages, an injunction, publication of a summary of the court’s judgement and an order to remove the defamatory statement. The court does not have a general power to require the defendant to correct the defamatory statement or declare the statement to have been false.

Our solicitors can assist you in claiming or defending a claim for defamation. Our approach will be as follows:

  1. We will first work with to establish whether the statement makes reference to the victim.
  2. Examine whether the statement caused serious harm.
  3. Investigate whether the publisher of the statement can be identified. 
  4. Review any documentation associated with the publication of the statement.
  5. Assist with drafting a Pre-Action Protocol compliant letter before action.
  6. Assist with drafting or reviewing any letter of responses to the initial Pre-Action Protocol compliant letter.
  7. Consider the prospects of settling matters. 
  8. Robustly commence or defend a claim for defamation.
  9. If necessary, instruct reputation consultants to rebuild any damaged reputation.
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