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Defining defamation

Defamation describes a false statement which it harms or tends to cause harm to a person’s reputation.

There is no helpful definition in statute or common law as to what exactly ‘defamatory’ means, but in Northern Ireland, the Courts have frequently stated that a defamatory statement is one which tends to lower a person’s standing and reputation in the estimation of right-thinking members of society generally.

How defamation might occur

It is important to note that defamatory statements can be made in different formats.

For example, a defamatory statement can be made orally (known as slander), or in written form (known as libel). Slander and libel are two types of defamation.

No.

Statements made orally, known as slander, which are not recorded and are non-permanent could be defamatory. For a slander to take place, it must be heard by another.

Generally, recorded words will be known as libel.

Does it make a difference if the statement was only published for a limited time, for example on a social media story?


A statement published only for a limited amount of time, or only to a smaller audience may still be defamatory.

The length of time the statement is available to see, or the larger readership or viewership, simply has greater potential for damage.

The greater the audience, the greater the potential negative impact of the statement.

 

Or does there need to be some additional publication, for example photographs in press reporting or posted online?


Slander can also include non-verbal forms of communication, such as gestures, signs or photographs.

So long as any sign can be seen, for example at a protest, this can be defamatory.

Re-publication of defamatory signs, for example by posting photographs of a protest, may also amount to defamation.

Who can sue and be sued?

Generally, any living person can sue for defamation.

A company can also sue for defamation as it has a business reputation to protect. However, the law makes it harder for a company that trades to sue for defamation than a person. For a company to be successful, it must prove that the statement has caused or is likely to cause the company serious financial loss.

A public body, meaning a formally established organisation that is publicly funded to deliver a public or government service, may not sue for defamation.

This is due to the understanding that organs of government should be open to public criticism and accountable for their actions. However, individuals connected to public bodies may sue in their personal entity if the defamation extends directly to them.

Are the members of the groups jointly responsible or can any one individual be pursued?

If a statement is made on behalf of an unincorporated organisation, it will be each member who authorised or participated in the defamatory statement who is personally liable. Therefore, a single individual or multiple individuals can be pursued.

Where the statement is made on behalf of a company or charity, an incorporated body, the organisation may also be liable to be sued by the party alleging defamation.

 

Can the claimant sue only the person who made the statement, or can they also sue the person who produced the podcast?

Can they sue anyone who broadcasts the podcast or facilitates the broadcast?


In theory, both the maker of the statement could be sued for defamation and anyone who participates in or authorises the publication of the podcast, for example the host or the producer.

However, this is somewhat of a legal ‘grey’ area.

In a recent EWCA Civ 68″]Court of Appeal case, it was found that a host may only be liable if they were aware of the defamatory material, or ought to have been aware. At that stage, they only become responsible if they fail to remove it.

Generally speaking, the event organiser could not be sued unless they were aware, or ought to have been aware of the defamatory statements that the speaker would make and authorised or participated in the same.

However, care must be taken because if the impression is given that the hosts support or endorse the views expressed, they may also be sued by the affected party.

With regard to speakers, the same principles apply as when organising any event (see previous answer).

Where a protest is open to the public, the organisers would not generally be held responsible for any defamatory statements made by attendees, whether made verbally or through placards and signs.

Bringing a claim

In Northern Ireland, the limitation period for defamation claims is 12 months from the date of first publication.

This limitation period differs from England and Wales to some extent. In E&W there is a ‘single publication rule’ which means that downloads of an article after first publication are excluded from calculating the date from which the limitation period starts to run.

However, in Northern Ireland, no such law exists.

That means that in Northern Ireland each time an online article is downloaded, it is technically published afresh and triggers a new 12 month limitation period for any potentially defamatory contents.

This places publishers in a never-ending spiral of potential liability.

Prior to entering into any litigation regarding defamation, there are a number of practical considerations for the party who believes they have been defamed:

  1. Has the offending statement caused or is it likely to cause serious harm to their reputation?
  2. Whether the Defendant could raise any defence which is likely to succeed (see below).
  3. More generally, what are the risks and financial implications of litigation?

In order to properly consider the above, it is advisable to consult a solicitor.


In Northern Ireland, there is a ‘pre-action protocol’.

This protocol sets out the steps which must be taken before starting a defamation claim.

It is important for parties to a claim to observe the requirements of the protocol. The Court will take the parties’ pre-action conduct into account when making orders for costs and other orders, for example when setting a timetable for the case.

The party bringing a claim is called the ‘plaintiff’ and the responding party, who it is alleged made a defamatory statement, is the ‘defendant’.

The protocol requires that a party intending to bring a claim should notify the potential defendant of this in writing at the earliest reasonable opportunity.

This correspondence is called the ‘Letter of Claim’ and it should include:

  1. The name and address of the plaintiff and proposed defendant;
  2. That the ground on which the claim is based is defamation;
  3. The nature of the remedy sought, for example the removal of the statement or monetary compensation referred to in litigation as ‘damages’; and
  4. Whether the individual intends to make the claim anonymously.

The pre-action protocol sets out the additional information which the Letter of Claim should provide about the claim itself.

It is important that the recipient can identify the alleged defamatory statement, so the Letter should set out details of the specific publication that contained the statement, setting out the statement and the date on which it was made. The date is important for calculating the limitation period.

The letter should also include an explanation of why the plaintiff considers the statement to be defamatory: why it is untrue and how it has adversely affected their reputation.

It should also set out details of the alleged damage caused by the statement, including a description of any financial loss claimed.

This list is not exhaustive but shows that when one is bringing a claim, they should gather up as much evidence as possible from as early a time as possible.

  • The Letter should give a deadline for the proposed defendant to respond, which ordinarily should be within 14 days from the date of receipt but may be shorter.
  • The proposed defendant should provide a full response to the Letter as soon as reasonably possible and if they cannot respond within the deadline given or within 14 days, they should reply to advise of the date by which they will reply.
  • This date should not be longer than 28 days from receipt of the Letter.

The protocol sets out what the response should include, for example:

  1. Whether or to what extent the claim is accepted or rejected;
  2. If the claim is accepted, the steps that the proposed defendant intends to take to remedy the situation;
  3. If there is insufficient detail in the Letter to consider the claim, the response should clearly set out what further details are required and why they are required; and
  4. If the claim is rejected, the reasons for doing so and details of any facts the proposed defendant will rely upon in their defence.

This guidance only summarises certain elements of the protocol.

If you are considering making a claim or have received a Letter of Claim, you should consult the protocol in full.

The general remedies available are:

  1. Financial redress for losses suffered, known as damages;
  2. An injunction to prevent the continuing publication of the defamatory statement; and
  3. A declaration that the matter was false and defamatory.

Defending a claim

There are several defences available in defamation claims.

The four main defences are:

  1. Truth. If the defendant can show that the statement they have published is substantially true, then this is a defence. The burden of proof is on the person who made and/or published the statement to prove that it was true, rather than for the claimant to show they were false. Therefore, the starting point for the Court is that the alleged defamatory statement is presumed to be false.
  2. Honest opinion. The defendant must show that the statement was an opinion; that the statement complained of indicated the basis of that opinion; and that an honest person could have held the opinion based on any fact which existed at the time the statement was made. The aim of this defence is to comply with the rights of freedom of speech and freedom of expression within the European Convention on Human Rights.
  3. Public Interest.  The defendant must show the statement complained of was, or formed part of, a statement on a matter of public interest and they reasonably believed that publishing the statement complained of was in the public interest, having regard to all the circumstances of the case.
  4. Privilege. This protects statements made on occasions where public policy required people to be able to speak freely. There is absolute privilege (for example statements made in Parliament), and qualified privilege (such as job references). Qualified privilege can fail as a defence if the plaintiff can show that the statement was published maliciously.

Should they get legal advice?


Defamation law is complicated, and there are strict rules and procedures, so it is always advisable to seek legal support.

If it is alleged that a post on social media is defamatory, and none of the defences are available, then they should be immediately removed or deleted.

Practically speaking, if there is any doubt, removal may be the safest approach.

If a post was made which was defamatory, it would be useful to ensure it is not further reported or published prior to its removal.

Failure to do so may lead to further claims/remedies being brought.

No.

Legal aid is not available for defamation claims in Northern Ireland.

Protective Costs Orders (PCOs) are court orders that impose a limit on the costs that can be awarded against an unsuccessful applicant who brings a court case which addresses public interest issues.

Only in exceptional circumstances will the Court make a pre-emptive PCO, and only if it is clear that the issues are of general public importance and that the individual has no personal interest in the outcome.

Usually, it would be assumed that an individual does have some personal interest and therefore costs will simply be dealt with at the conclusion of the proceedings.

If the alleged defamation is found by the Court to be a matter of public interest and the case is successfully defended, the defendant may that the plaintiff is ordered to pay the defendant’s costs.

If a person makes an allegation or statement to a journalist as part of an investigation, can they be sued if the statement is considered defamatory?


One should not have to worry about this if the statement is an honest opinion or truthful.

If a journalist repeats and publishes a defamatory statement, then they are at risk of being held liable for defamation as well as the statement maker, subject to the defences and whether they knew or ought to have known it was defamatory.

On the face of it, being told that it is ‘off the record’ does not protect the person making the statement.

If the defendant is using truth as their defence, the onus is on them to prove that.

If they cannot evidence that the statement is substantially true, then they will fail and the plaintiff will succeed, without needing to produce evidence that the statement was false.

In saying that, if the defendant can produce convincing evidence, then the plaintiff, in order to be successful, would have to produce evidence which shows that it is in fact untrue.

Things to remember

  1. Be truthful.
  2. Be clear and unambiguous.
  3. Do your research. Carry out thorough fact checking to ensure the accuracy of a statement.
  4. Critically and objectively compare your statement to the facts.
  5.  Seek corroboration from other sources.
  6. Hang on to your evidence so that you can produce it in the event of a claim.
  7. If you are still unsure, seek legal advice before making the statement.

Appreciation and acknowledgements

Thank you to Andrew Palmer BL, a member of our Pro Bono Register, who researched and drafted this guide.

We are incredibly grateful for the time and insights that you shared.