1. This Practice Note is prepared as an Internal Document for use by Arden LLP Fee Earners as an up-to-date guide of the Law of Defamation. All references in this Practice Note are to the Defamation Act 2013 unless otherwise stated.
2. Defining "Defamation" the law of defamation aims to protect reputation and applies to both individuals and companies this practise note will define the elements and explain the factors and defences involved in defamation. Defamation is now governed largely by the Defamation Act 2013 (DA 2013) but this does not mean that case law proceeding the Act is obsolete, in fact prior case law needs to be referred to in order to understand the interpretations which may apply under the DA 2013.
3. Written defamation is libel and verbal defamation is slander (you may want to expand on this by adding an explanation a few cases).
4. The court looks at 4 main factors when determining whether or not defamation is present:-
5. Is the statement defamatory?
6. Does the statement refer to the claimant?
7. Has the statement been published or communicated to a third party?
8. Are there any applicable defences?

Each of these is a constituent part of Defamation and before Defamation can be proved points 1) to 3) above must be demonstrated before the court. If any of these elements are missing the case will fail. If the case fails there is no need to consider applicable defences. If the case has all three factors above present then it is necessary to consider applicable defences.

1. Is the statement Defamatory?

• A company or any other body that trades for profit needs to establish that the defamatory statement has caused or is likely to cause serious harm to its reputation. Since the introduction of the DA 2013 claimants must demonstrate that, where they are a company trading for profit, the'serious harm'to its reputation has caused or is likely to cause serious financial loss. The relevant sections of the Act here are section 1(1) and 1(2) students should aim to indicate what these two sections refer to.
• Students should note that there is a different test for a slander claim in that the claimant must have suffered actual harm. It is important to note that libel is no longer actionable without proof of damage. However, there are two exceptions to the test for slander, if the claimant has been (a) accused of criminal conduct or (b) of being incompetent in their professional dealings then slander may be actionable 'per se', that is without proof of harm.
• Furthermore, statements or words in a defamatory statement must tendto lower the claimant in the estimation of right thinking members of society in generalcausing them to be shunned or avoided Sim v Stretch [1936] - students should refer to this case and perhaps include a quote from the case at the very least there needs to be a full neutral citation Section 1 (1) DA 2013 was intended to make it more difficult to succeed in an action for defamation so that only cases involving serious harm can be brought by the claimants.
• When considering whether the statement made has had and injurious impact on the reputation of the claimant, it will now be necessary for the court to consider to whom the statement was communicated in order to assess if serious harm has been caused. This is likely to require examination of extrinsic evidence (here students should consider what kind of evidence might be required in the case such as this).
• Students may also want to add further cases but be mindful of getting bogged-down with this first point as there is still a lot more to explain within the word count.

1. Does the statement refer to the claimant?

• As with the example above, students should explain the DA 2013and relevant case law demonstrating this point.
• In most cases it will be evident that the statement refers to the claimant, but it is also relevant to ask."Would a reasonable person understand the statement as referring to the claimant?" And here the student should analyse relevant cases such as Morgan V Odhams Press [1971], Knuppfer v London Express Newspapers [1944] and Le Fanu v Malcolmsom [1848] - there are other observations and comment students can make and other cases which may be cited, this is just an example.

1. Has the statement been published or communicated to a third party?

• As with the example above, students should explain the DA 2013 and relevant case law demonstrating this point.
• Here students should identify that the statement must be published or communicated to a third party and that there is a 12 month limitation for bringing a claim.
• If a comment has been made online then it will be the date when the story or article was first published.
• It is possible that a statement can be published or communicated negligently but the harm must be foreseeable. A relevant blog case here would be Cruddas V Adams [2013].
• Students must distinguish between the common law which states that every time a defamatory statement is republished a new legal cause of action arises on that date, the same statement may have been made by several different publishers. The position under Section 8 DA 2013 is different and students are expected to examine Section 8 DA 2013.

1. Are there any applicable defences?

Liability may be limited but there are a number of defences under DA 2013 which might apply including:

1. truth, s (2)
2. honest opinion, s (3)
3. public interest and privilege, s (4)
4. innocent dissemination, s (10)
5. Students might also comment that s (13) allows the court to order the removal or the prevention of distribution of defamatory material.

Each of these defences needs to be looked at in detail.

1. Truth:

• The claimant need only show that the statement was defamatory. The claimant does not have to show that the defamatory statement was untrue section two of the defamation act puts this on a statutory footing which replaces the old common law, s 2 states that it isa defence to an action for defamation for the defendant to show that the imputation conveyed by the statement complained of is substantially true. The defence applies to statements of fact, not opinion.
• The motive of the defendant for publishing the material is irrelevant as is whether or not the statement is made in the public interest.
• The burden of proof in establishing this defence is on the defendant to demonstrate that it was more likely than not that the statement they made was substantially true it is not necessary for a defendant to show that everything that they said was true.
• Here students should look at most the most recent and relevant cases, if students visit the defamation topic on ilearn, they will see that there are a number of reliable resources to which the links have been provided. The links may not work directly from ilearn and you may have to copy and paste them into a browser.
• You must explain how the truth defence operated in these cases: Depp v Newspaper Group Newspapers Ltd [2020] EWHC 2911 (QB),Warning: in relation to the defamation cases between Johnny Depp and Amber Heard, it is absolutely vital that you do not confused the tandem proceedings which were ongoing in the United States with the case which was being heard in the High Court in England and Wales - the cases had different outcomes and you are not required to make any comment on the proceedings in the United States. In the English case, the Defendant Newspaper argued the truth defence which was accepted by the court and Depp lost his case, he also lost his application to Appeal the High Court's ruling to the Court of Appeal as the Court said his Application was without any real prospects of success.
• Bokova v Associated Newspapers Ltd [2018] EWHC 2032.
• Vardy v Rooney [2022] EWHC 2017 (QB) -in this case Vardy wanted to rely on the truth defence but her case failed.

1. Privilege and Qualified Privilege
   • Explain these in more detail. Include in your comments about qualified privilege the meaning of s 6 DA 2013which is aimed at allowing free scientific or academic debate without fear of a law suit.
   • You need to discuss s 4 which introduced a new defence of'publication in the public interest'per Reynolds v Times Newspaper [2001].
   • This defence applies where the defamatory statement where the factor opinion is a matter of public interest and be the defendant believed that publishing the statement was in the public interest. This Reynolds case demonstrates that the DA 2013 mirrors the common law incorporating both a subjective test that is:'What did the defendant believe was in the public interest at the time of publication?'and an objective test that is:"Whether the belief was a reasonable one for the defendant to hold in all the circumstances."
   • The act does not define the public interest but s 4(2) requires the court to ask whether the defence should be successful having regard to all the circumstances of the case, which will include and the defendants argument that what they published was in the public interest.
   • S 4 (4) states that the court should considerwhether it was reasonable for the defendant to believe that publishing the statement complained of was in the public interest.Students should refer to the case of Economou v de Feitas [2018] - this case confirmed to the court will place great store by a defendant's argument that"they reasonably believed"the publication was in the public interest, i.e. subjective test. This case was the first case to consider the new public interest defence since the DA 2013 came into force.
2. Honest Opinion

• Here students are required to comment on this defence with appropriate cases.
• S 3 DA 2013 replaces the common law defence of honest or fair comments with the statutory defence of honest opinion. The defence will be available where three conditions are met, students should comment on these opinions, (1) firstly the defamatory statement is one of opinion, (2) the statement indicates the basis of the opinion and (3) an honest person could have held that opinion on the basis of true facts or facts alleged to be true.
• innocent dissemination, s (10)- can be dealt with very briefly here.

1. Remedies

• S 13 DA 2013
• Compensation (perhaps even aggravated or exemplary compensation) - these damages may be higher where the statement has gone 'viral

Students must use their Practice Note to give advice to Water Gone 4 U.

Client Instructions

The client has come to the firm for advice on a blog that was published about their business which has led to a fall in customers wanting to use their services and a subsequent significant loss in revenue.

The client is a company called "Waste Gone 4 U" and is a company that provides a service removing household and commercial waste products such as building materials and disposing of this for clients.

The managing director, Mark Jones, has advised that a blog was published by a group called "Environment Today" in which his company was identified as one of several companies who have committed "fly tipping" in various different rural areas. The blog names the company and identifies them as failing to dispose of waste properly and instead, abandoning things like fridges and building waste on country roads.

Mark has advised that this is completely untrue and would like advice on whether he can bring a claim against "Environment Today" for the loss of business the company has suffered as a result of the blog. He also wants the blog removing and an acknowledgement from "Environment Today" that the blog was untrue.

QUESTION TO WORK ON

WITH THE USE OF your practice note and what you have learnt to advise the client, including whether the recent cases will have an impact on the client's claim. Draft a file note for your Supervisor which applies the law you identified in the practice note to the client's case. Make sure you address the following:

- Explain the advice you would provide to the client and why;

- Indicate if there is more information that is needed from the client in order to advise fully;

- Identify and explain whether there are any potential defences that "Environment Today" could try to rely on.