England & Wales Media Law Guide

ENGLAND & WALES MEDIA LAW GUIDE

Defamation and Privacy Law in England & Wales

Contributors: Claire Gill (Partner) and Mathilde Groppo (Senior Associate), Carter-Ruck

Defamation

The law of defamation protects harm to reputation caused by the publication of false defamatory statements. Defamation is the collective name for two separate torts: libel and slander. The distinction turns on the permanence of the defendant’s statement, but broadly speaking libel covers written publications (even if quickly removed) whereas slander is for more transient statements, such as spoken words.

The law of defamation in England and Wales is now principally governed by the Defamation Act 2013 and related statutes, and supplemented by the common law.

I. Preliminary Issues

Standing

Any living person can sue in defamation. A business (whether incorporated or not) can also sue in defamation, albeit with a need to meet specific further conditions in order to be able to do so (see below).

Governmental bodies, trade unions and charities are excluded from suing in their own capacities, but individuals connected to such groups can sue if the defamation extends to them.

Who can be sued?

Any person or entity involved in the publication or dissemination of the defamatory statement can be sued, most obviously the author, editor or publisher. A person or entity sued who is not the author, editor or publisher may have a statutory defence under s.1 Defamation Act 1996 (previously the common law defence of innocent dissemination) where they can show they took reasonable care in relation to the publication and did not know and had no reason to believe that what they did caused or contributed to the defamatory statement. Particular rules apply to the operators of websites under s.5 Defamation Act 2013.

Limitation

The claimant has one year from the date of publication to issue proceedings in defamation. Where a person subsequently publishes a statement which is substantially the same as the original publication, the limitation period runs from the date of the first publication.

Nature of the tort

Libel and slander are strict liability torts. The claimant does not need to prove intention or negligence on the defendant’s part, provided the below elements are established and the defendant does not raise a successful defence. In some instances, however, the defendant’s state of mind may be relevant to defeating some defences.

II. Elements of the action: what the claimant must prove

A.       Publication of a statement to a third party

This can be to the public at large, or to a more limited number of publishees.

B.       The statement identifies the claimant

The statement does not need to name the claimant; it only needs to be understood to refer to the claimant.

C.        The statement is defamatory and causes serious reputational harm

There are a number of applicable tests at common law as to what is defamatory, but generally speaking a statement will be defamatory at common law if it is capable of lowering the reputation of the claimant in the eyes of society generally.

Section 1 Defamation Act 2013 imposes a requirement to meet a “serious harm” test, where a “statement is not defamatory unless publication has caused or is likely to cause serious harm to the reputation of the claimant”.

What constitutes evidence of serious harm has been the subject of several court decisions, culminating in the Supreme Court decision in Lachaux v Independent Print Ltd [2019] UKSC 27, which found that “serious harm” refers to the consequences of the publication and depends on a combination of the inherent tendency of the words and their actual impact on those to whom they were communicated.

The effect of s.1(2) Defamation Act 2013 is to make it harder for a company to sue for libel; “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”. Serious financial loss is a high threshold and there are a very limited number of cases in which such loss was found to have been established.

There are also other, specific conditions which apply to whether a slander will be actionable.

Meaning

At the heart of any defamation claim is the meaning of the words complained of; the more grave the defamatory statement, the harder it will usually be to defend. It is common in litigated cases for there to be a dispute between the parties about what the words of which complaint is made mean, whether they are defamatory and whether they are statements of fact or expressions of opinion. These issues are commonly determined at an early stage by the court, at a Trial of Preliminary Issues.

III. Defences

The main defences are set out below. The list is not exhaustive.

A.       Truth (Defamation Act 2013, s.2)

A claim in defamation will fail where the defendant can demonstrate that the imputation conveyed by the statement is substantially true. The burden of proof is on the defendant to prove the veracity of his or her statements, and the standard of proof is the balance of probabilities.

B.       Honest opinion (Defamation Act 2013, s.3)

Where the defendant published a statement of opinion (as opposed to a statement of fact), a defamation claim will fail if the defendant can show (1) that the statement indicated, in general or specific terms, the basis of the opinion, and (2) that the opinion could have been held by an honest person on the basis of facts which existed at the time the statement was published or on the basis of anything asserted to be a fact in a privileged statement published before the statement complained of. The defence is defeated if the claimant can show that the defendant did not hold the opinion.

C.       Publication on a matter of public interest (Defamation Act 2013, s.4)

This defence applies where the statement was on a matter of public interest, and the defendant reasonably believed that publishing the statement was in the public interest. The defendant’s conduct at the pre-publication stage is relevant to the question of the reasonableness of the defendant’s belief that publishing the statement was in the public interest, and the defendant will need to demonstrate the reasonableness of their belief by means of contemporaneous notes or records. The court must grant the defendant a certain amount of latitude for editorial judgement at the time of publication.

This defence replaces the old common law defence known as the Reynolds defence. Under the Reynolds defence, protection was given to “responsible journalism” reporting on matters of public interest. The court, in assessing whether the journalism was responsible, applied illustrative factors identified by Lord Nicholls in Reynolds v Times Newspapers Ltd [2001] 2 AC 127 including whether the claimant had been given a fair opportunity to respond to the allegations. In assessing whether the belief of the defendant in the public interest is reasonable under s. 4, consideration must be given to all the circumstances of the case. Whilst the statute does not refer to the Reynolds factors, they are recognised as relevant to assess whether a defendant’s belief that publication was in the public interest was reasonable.

D.        Absolute privilege

If a statement is protected by absolute privilege there is a complete defence to a claim for libel, regardless of whether the statement is false or whether it was made maliciously. This defence protects the legislature, the executive and the judiciary in the exercise of their public functions. It applies for example to:

• parliamentary debates and proceedings
• court proceedings
• fair and accurate contemporaneous reports of court proceedings (s.14 Defamation Act 1996)
• certain international documents
• complaints to the police

E.       Qualified privilege

At common law, qualified privilege protects a statement made by the defendant (D) to another party (X), in one of two circumstances:
(1) D has a duty to communicate the information in the statement to X, and X has a corresponding interest to receive the information; or
(2) D and X have a common interest in the information being communicated.

There are a number of instances where qualified privilege applies by operation of statute under s.15 Defamation Act 1996 and Schedule 1 thereto. This Act splits the statements protected between those having qualified privilege without explanation or contradiction (for example a fair and accurate report of proceedings in public of a legislature anywhere in the world) and statements that are privileged subject to explanation or contradiction, that is to say that there is no defence if the claimant shows that the defendant was requested to publish a reasonable statement by way of contradiction but refused or neglected to do so. An example would be a fair and accurate report of proceedings at any public meeting in the UK of a local authority.

The defence is defeated if it is shown to be made with malice, that is that the defendant made the statement with a dominant improper motive: evidence that the defendant did not believe the statement to be true or was indifferent as to its truth or falsity will be evidence of malice.

F.        Offer of Amends

The Offer of Amends regime (under Defamation Act 1996, ss.2-4) allows the defendant to accept liability and settle a defamation claim early on in the proceedings. Due to having accepted liability, the defendant then benefits from more favourable rules; the amount of compensation payable to the claimant will be subject to a discount, to reflect the mitigating factors of the case including the fact of the Offer itself, and other relevant elements including the early publication of a correction.

The defendant’s offer must include:
(1) a suitable correction and sufficient apology;
(2) publication of the correction/apology in a manner that is reasonable and practicable;
(3) the payment of such compensation and costs, as are agreed or determined by the court.

The Offer must be made before or at the time the Defence is served.

IV. Remedies

A. Damages

A successful claimant in defamation is awarded damages by the court. General damages will compensate the claimant for damage to reputation, vindicate their name and take account of the distress and humiliation caused. A number of factors can be considered by the court in determining the damages award, including the gravity of the allegations and the extent of the publication. Aggravated damages may be awarded if the defendant’s conduct has increased the hurt suffered by the claimant. Sections 34-36 Crime and Courts Act 2013 restrict the circumstances in which the court can award exemplary damages against the press where the publisher is a member of an approved regulator. “Special damages” can be awarded for actual monetary loss; such awards are rare as it is normally difficult to establish causation.

There is a notional ceiling for damages awards, which cannot exceed the maximum level of damages awarded for pain and suffering and loss of amenity in personal injury cases; currently of the order of £350,000 (Lachaux v Independent Print Ltd & Anor [2021] EWHC 1797), although in practice awards tend to be much lower.

B.        Apologies

The publication of an apology is not a type of relief that can be awarded by the court, although it is commonly included in a package of remedies agreed between parties by way of settlement. However, the court can order the defendant to publish the outcome of the case under s.12 Defamation Act 2013.

In cases that settle before trial, there is a possibility to read a Statement in Open Court (unilateral or joint), which sets out the background to the proceedings, announces the fact of the settlement and can sometimes include an apology/retraction by the defendant. This is another way of vindicating a claimant’s reputation.

C.       Injunctions

It is extremely difficult to obtain an interim injunction from the court which prohibits a threatened/imminent publication of a defamatory statement – the claimant must demonstrate that the defendant would not be able successfully to raise any defences at trial. Where, for example, the case requires examination of witness evidence, the case will need to go to trial, and an interim injunction restraining publication cannot be granted.

It is usual for the claimant to seek a final injunction in their general defamation claim, i.e. for the court to restrain the defendant from repeating the same or similar allegations, but a final injunction cannot be granted until trial.

Privacy

An individual’s right to his or her privacy is protected by the tort of ‘misuse of private information’ (MPI). MPI found its roots in the equitable wrong of ‘breach of confidentiality’, and crystallised as a standalone, distinct tort in the early 21st century. This was in part linked to the enactment of the Human Rights Act 1998, which incorporated into domestic law the European Convention of Human Rights, whose Article 8 protects the right to respect for private and family life. There is a limitation period of 6 years running from the date of publication.

I. Elements of the action

There is a two-stage test:

1.        Whether the claimant has a reasonable expectation of privacy

To pass the first stage, the claimant must identify the existence of a ‘reasonable expectation of privacy’ (REP) in the relevant information. The court will consider such factors as including the nature of the activity that is the subject matter of the information and the place where it occurred. Typically matters relating to a person’s sex life, medical history, family and home life will be matters over which a claimant will have a REP. The context in which the information is revealed (e.g. whether a photograph was taken in public or in private) is also a factor to be taken into account when determining whether an REP arises. The information does not need to be in the form of written text; an REP can also arise in relation to photographs, videos and other materials.

Where an individual shares private information with other people, without apparent concern for limiting its publication to select parties, it can be difficult for the individual to establish the existence of an REP in such information. It can also be more difficult to establish the existence of an REP where the relevant information is already in the public domain, although that is not an absolute bar.

High-profile individuals and public figures are also entitled to privacy, but the approach taken to establish the existence of an REP in relation to them may be different from that of ordinary individuals.

It does not matter whether the information is true or false.

2.        Is the REP outweighed by the countervailing right to freedom of expression: the balancing test

The second stage consists in balancing competing Convention rights and the justification for interfering with each right by way of a parallel analysis, applying the test of proportionality to each. This is referred to as a ‘parallel’ test because neither right (Article 8 or the competing Article 10 right to freedom of expression) takes precedence.

In PJS v News Group Newspapers [2016] AC 1081, [20], Lord Mance summarised the relevant principles as follows:

“(i) neither article has preference over the other, (ii) where their values are in conflict, what is necessary is an intense focus on the comparative importance of the rights being claimed in the individual case, (iii) the justifications for interfering with or restricting each right must be taken into account and (iv) the proportionality test must be applied: see eg In re S (A Child) (Identification: Restrictions on Publication) [2005] 1 AC 593 , para 17 . . . and Mosley v News Group Newspapers Ltd [2008] EWHC 687 (QB) at [28] per Eady J, describing this as a ‘very well established’ methodology. The exercise of balancing article 8 and article 10 rights has been described as ‘analogous to the exercise of a discretion’: AAA v Associated Newspapers Ltd [2013] EWCA Civ 554 at [8].”

The balancing exercise is therefore a fact-sensitive analysis, which involves consideration of the extent to which revealing the information is in the public interest.

II. Remedies

A.        Injunction

The primary remedy sought is an injunction, which is a prohibitive form of order intended to restrain the defendant from publishing the information (whether prior to, or following publication). The form of order can be tailored to the circumstances of the case. An injunction can therefore also require the defendant to take other steps, such as deleting or delivering up any infringing materials.

An injunction can be sought either prior to publication, or after publication. If the injunction is sought prior to publication, it involves obtaining an ‘interim’ injunction, which is put in place pending a full hearing. In order to obtain the injunction, the claimant must demonstrate that he or she is more likely than not to succeed at trial.

Once an interim injunction is granted, the normal litigation process occurs. The parties may reach terms of settlement (which typically involve the giving of undertakings by the defendant). If no settlement is reached, the parties will follow the litigation process and ultimately return to court for a trial at which the judge will determine whether to grant a final injunction.

B.       Damages

Damages play a small role in pre-emptory privacy actions, where the granting of an injunction is the primary remedy sought.

Damages are more important in cases brought after the private information has been published. In that case, a claimant may seek the payment of damages to compensate the violation of his or her right to privacy. Where the defendant was on notice of the claimant’s legal rights, it may be possible to also obtain aggravated damages. Damages are typically lower than in libel cases, but can range in the tens of thousands of pounds.

C.        Anonymity

Privacy proceedings are typically anonymised, which means that one or more of the parties are identified only by an acronym and are not identified by the general public pursuant to an anonymity order. If the privacy claim ultimately fails, the court may discharge any previously applicable anonymity orders. The identities of the parties protected by the anonymity order would then enter the public domain.

Data Protection

The legal framework protecting data subjects in England and Wales consists chiefly of the UK General Data Protection Regulation (GDPR) and the Data Protection Act 2018 (DPA). Data protection is concerned with the fair and proper use of information about people. Although it shares a partial basis in the ECHR, Article 8 with the tort of misuse of private information, the two areas are distinct.

The UK GDPR sets out various obligations on parties who process and/or control data. The obligations on some parties (such as law enforcement authorities or the intelligence services) are tailored for the particular circumstances. Data must be processed in accordance with the UK GDPR which includes seven overarching principles, such as the accuracy principle.

The UK GDPR also contains various data protection rights for individuals. These include a data subject’s right to have his or her personal data erased, commonly known as the ‘Right to be Forgotten’. This is not an absolute right, and only applies in certain circumstances. Those rights are not absolute, and can be limited where an exemption applies, such as the journalistic exemption. Data subjects can contact parties processing their data to notify them of violations of their rights, and request compliance with data protection law.

It is possible for data subjects to obtain compensation (including damages for distress) where their data protection rights have been violated. The Information Commissioner’s Office (ICO) can also fine data processers and controllers for breaches of data protection law.

Contributors: Claire Gill (partner) and Mathilde Groppo (senior associate)

Carter-Ruck
The Bureau, 90 Fetter Lane
London EC4A 1EN
United Kingdom

The material in this Guide is for general information only and does not constitute legal advice.