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Sticks and stones may break my bones, but words will never hurt me… or will they?


The ongoing court case in America between Johnny Depp and Amber Heard has focussed attention on the concept of defamation. But did you know that defamation can cause legal problems for directors and officers of businesses?


What is defamation?

Defamation concerns the publication of a statement that has caused, or is likely to cause, serious harm to a person’s reputation for which the key ingredients are:

• the publication of words or other matter that refer to the claimant,

• an imputation (accusation or insinuation) from those words which is capable of causing serious harm to the claimant’s reputation, and

• the words cannot be proved to be true or excusable by any other legal defence.

The common law test for establishing whether a statement is defamatory is whether the imputation of it would lower the claimant in the estimation of right-thinking members of society generally.


In some cases, there will be a clear negative imputation, such as an allegation that an individual has done something illegal or immoral. Often the issue will be more complex, where the author is using innuendo, relying on a reader having a knowledge of certain facts. The test is what the ordinary reasonable reader would understand the words to mean.

In determining whether a publication is likely to cause serious harm, the question is whether the publication, considering all the aspects of it, has a tendency to cause serious harm. However, the degree to which serious harm will require assessment is likely to differ between mass media and other, smaller scale publications.


A defamatory statement published in written form is known as libel, while a defamatory statement published in spoken or other temporary form is slander.

A claim for slander requires proof of the actual words spoken and, in some cases, also requires proof of specific financial loss.


Defences to libel and slander

If you’re accused of libel or slander, what are your first lines of defence?

Generally speaking, in law, you may be able to defend yourself by proving that:

  • You weren’t the publisher of the statement

  • If you did make the statement, it didn’t refer to the alleged victim

  • The meaning of the statement wasn’t actually defamatory

  • The statement was true

  • The statement was for comment on a matter of public interest

  • In an action for slander, under English Law, the statement caused no loss to the alleged victim

You should also be aware that defamation claims must be brought within one year, otherwise they cannot be pursued although the time limit is capable of being extended in certain scenarios.


The worst that can happen

There have been noteworthy defamation claims in the past,

https://www.bbc.co.uk/news/entertainment-arts-59731932

https://www.bailii.org/ew/cases/EWHC/QB/2017/433.html

https://www.bbc.co.uk/news/uk-39234079

https://www.bbc.co.uk/news/uk-60595266

which demonstrate the financial consequences that may result if a judgment goes against the person alleged to have made the statement. These consequences don’t just refer to the damages that can be awarded by a court, but to the entirely possible outcome of an award of costs against the defendant, as was the case in Monroe v Hopkins.


The insidious role of social media

Social media has gained a reputation in the past few years as a fast-moving arena where statements that might, in the past, have been read only by a few people, can be amplified and disseminated to an audience of thousands, if not millions. There is no real way of forcing the social media user to adhere to standards of truth or accuracy; a tweet or post can be reported and a platform user banned, but this is after the fact, by which time the damage may already have been done.


Additionally, the nature of social media platforms means that the informal and personal nature of the messaging that goes on there, as well as the opportunity for hiding behind a pseudonym can encourage contributors to be more frank and less guarded than they might otherwise have been in other spheres of communication. This can mean that users may end up saying something that they come to regret; although they may then delete the offending post or tweet, it’s entirely possible for a screenshot to be taken before this is done and for those words to continue to be circulated, in some cases “going viral”, depending on the content and controversy.


Many social media users fail to understand fully the difference between accounts set to public and private; they may not realise that something that they have posted, either as a main post or as a reply to somebody else’s post can be read by virtually anyone. It’s clear therefore that there is a huge potential for someone to land themselves in a lot of trouble for a throwaway comment that they may well have forgotten making by the next day.

Social media has attracted its fair share of defamation cases in the comparatively short time it has been in existence, including Monroe v Hopkins and McAlpine v Bercow

https://www.bailii.org/ew/cases/EWHC/QB/2013/1342.html

In a statement that shines a spotlight on the nature of social media, McAlpine’s solicitor said “Twitter is not just a closed coffee shop among friends. It goes out to hundreds of thousands of people, and you must take responsibility for it. It is not a place where you can gossip and say things with impunity…”


What can be done?

We’ve confirmed what defamation is, and the defences that can be used in the event of an accusation of defamation. But what should employers do to prevent defamatory statements by their staff and what should they do if one of them is accused of making a defamatory statement in the course of their employment?


Under the common law principle of vicarious liability, an employer is generally liable for the actions of its employees, in the course of that employment. This rule will apply unless the employer can demonstrate that the employee was not acting in the course of their employment and was off 'on a frolic of his own'.


Employers should educate their employees on the basics of defamation and employees should be advised against making negative statements, or if that is sometimes necessary in the course of their employment, to phrase any negative statement very carefully. It may be possible to set this out in a policy with a view to both educating employees and minimising the risk of vicarious liability arising from any defamatory statements.


When problems do occur, careful but decisive management of the situation will be key to avoiding escalation - a carefully worded apology may resolve matters swiftly. High-profile litigation will be expensive and may bring a dispute or allegation to far greater prominence than the original publication. Above all though, defamation is a complicated area of the law and legal advice should be sought as soon as possible.


Training and guidance

It’s hard to over-estimate the importance of proper guidance and training for staff in how to handle all forms of communications through which defamation might be carried out – including emails, telephone conversations, mobile phone texts and social media. A robust policy and clear advice and guidance, including specialised training will put a company in a good position if they are the subject of a claim that they are vicariously liable for the defamatory statements of employees. It’s important in today’s fully connected world that this training and guidance applies to all employees, not just PR staff and senior management.


Insurance cover

One thing that you can do to protect yourself against the consequences of defamation accusations and consequent legal action is to take out a management liability policy. Many such policies contain a Directors and Officers section that extends cover to employees of the company for claims such as defamation.