Do you consider bringing a claim for defamation?
When it comes to defamation, there are a lot of grey areas. And with social media, it can be hard to know where to draw the line. If you're thinking about bringing a claim for defamation, there are a few things you should consider.
Can I sue someone for insulting me? You can sue someone for insulting you, but the viability of such a suit depends on the nature of the insult. However, if the insult is of a serious nature, such as rape, racial slurs, or sexual harassment, a suit is likely to be subject to defences. In the case of an insult of a less serious nature, such as name-calling or general insults, a suit may still be possible but is less likely to be successful.
This is because these types of insults are more difficult to prove in a court of law that they are in fact defamatory. If someone calls you a name or insults you, it could be difficult to prove defamation. This is because defamation is usually only considered to have occurred if the false statement has caused you harm, and name-calling or insults generally don't cause harm.
In the United Kingdom, defamation, includes both slander and libel. Slander is not a criminal offences and so as libel. This means that you cannot go to jail for making false or damaging statements about someone. The person you have defamed may be able to take civil action against you if they can prove that your statements have caused them harm. If you take civil action for defamation, you could end up, if found liable, having to pay serious damages as well as hefty legal costs and become the subject of an injunction.
Having said that, you could still end up in prison if you are found to be in Contempt of Court, by, for example, not complying with a defamation injunction.
The Defamation Act 2013, is the latest UK law on defamation. The law states a statement does not constitute defamation unless it has caused or is likely of causing serious harm to the reputation of the person offended.
There are several defences to defamation that the law provides. The Protocol of Pre-action for Media and Communications Claims defines how defamation claims are to be brought and managed. The Pre-Action Protocol addresses a wide range of causes of action, including, but not limited to defamation claims, harassment, breach of confidence, malicious falsehood and misuse of private information.
Often a defamation claim is brought together one or more of the causes of action listed above. There are a number of ways in which claimants could have a claim arising from publications or threatened publication of the print or broadcast media. For example, if a newspaper were to publish false and defamatory statements about an individual, that individual could bring a claim for libel.
Similarly, if a television programme were to broadcast images that invade an individual's privacy, that individual could bring a claim for breach of confidence or misuse of private information. In addition, if online or social media were to publish or threaten to publish material that is sensitive or confidential, such as medical records or financial information, that could also give rise to a claim.
Finally, if someone were to make a speech that was defamatory or offensive, that could also lead to a claim being brought. Both parties to a defamation claim are expected and encouraged to resolve the dispute quickly and avoid court, so the first step in taking legal action for defamation is to prepare and serve on the other side a Letter of Claim, which is sometimes referred to as a Defamation Cease and Desist Letter of a Letter before Legal Action.
The first step before bringing a claim for defamation is to draft and issue a Letter of Claim. This letter outlines the basis of the claim as well as the remedies sought. The Letter of Claim should include the following information:
- What publication contains defamatory remarks;
- What was the defamatory comment, statement or remarks;
- When the statement was published or (in the instance of slander), in which circumstances it was made;
- What meaning does the claimant attribute to the defamatory publication In what way is the publication defamatory, inaccurate or false In what way the publication had caused or is likely to cause the claimant serious reputational harm;
- What remedies is the claimant seeking;
If the Letter of Claim is successful, the next step is to negotiate a settlement with the publication. If no settlement can be reached, the claimant can choose to file a lawsuit but only after alternatives, such as mediation or early neutral evaluation (ENE). If those fail, the parties are required to evaluate their respective positions and consider whether rather are other ways they could resolve the matter before filing a claim with the court.
Defamation is a difficult tort to prove, but there are a number of elements that must be proven:
- First, and most important, is that the defendant must make a statement which is defamatory;
- Second, the statement must be false;
- Third, the statement must have been false at the time it was made;
- Fourth, the statement must (but not necessarily) be unprivileged;
- Fifths, the statement must (but not necessarily) be published to a group of people ;
- Sixth, the published statement resulted in serious reputational harm to the Claimant.
The Claimant will also need to successfully deal with any defences that the defendant may put forward.
Under the Defamation Act 2013, there are a number of defences that can be raised in an action for defamation. These include truth (the defence of justification), honest opinion (the defence of fair comment), and privilege (the defence of absolute or qualified privilege). In addition, the Act provides a defence in cases of publication on matters of public interest. The Defamation Act 2013 has significantly changed the law of defamation in England and Wales.
One of the most significant changes is the introduction of a number of new defences. The defences to a defamation claim include:
- honest opinion;
- Publication on matters of public interest;
- Operators of websites;
- Peer-reviewed statement in a scientific or academic journal;
- Protected by privilege ;
The defence of truth allows a person to defend themselves against a defamation claim if they can show that the statements they made were true. The defence of honest opinion allows a person to express their opinions without fear of being sued for defamation. The defence of public interest allows for statements to be made about matters of public interest without fear of defamation claims
One of the defences available to parties in defamation cases is that the statement is true. This defence can be difficult to prove, however, if the statement is shown to be false, it can be grounds for dismissal of the case. Another defence is that the statement was made in good faith and without malice, known as the defence of fair comment.
This defence is based on the idea that the statement was an honest opinion and not intended to harm the reputation of the person being commented on. There are many other defences available in defamation cases, including the defences of absolute privilege and qualified privilege as well as specific defences that are available for academics.
Before you decide to bring a claim for defamation, you need to consider what defences might be available to the other side. This is because if the other side can prove that their statements were true, or that they were simply expressing their opinion, then your claim will not be successful.
Additionally, if the other side can show that they took reasonable care in checking the accuracy of their statements, then your claim may also be unsuccessful. There are cost consequences if you were to take a successful defamation case to court. The general rule is that the losing party is liable to pay their own legal costs as well as the other party’s legal costs. This could turn out to be very expensive.
There is no legal requirement for you to have a lawyer in a defamation case. However, with a lawyer, you will enhance your likelihood of success. There are also cost consequences if you were to take a successful defamation case to court. The general rule is that the losing party is liable to pay their own legal costs as well as the other party’s legal costs.
This could turn out to be very expensive as it is possible that whilst you represented yourself in the defamation case, the other party had good lawyers on their side. If you lose, you will need to pay their lawyers’ legal costs. If you are successful in your defamation case, you may be able to recover your legal costs from the other party.
However, even if you are successful, you may still have to pay your own legal costs if the other party does not have the ability to pay. The team at Cohen Davis is exceptionally experienced in handling defamation claims and can provide pragmatic, practical and very sensible legal advice so make sure to speak to our team of lawyers before incurring substantial legal costs in litigation.
The team at Cohen Davis will help you to understand the likelihood of success in your particular case and will provide guidance on the best course of action.