The legal framework for defamation in England and Wales is set out primarily in the Defamation Act 2013, supplemented by the common law. The Act applies to any published statement regardless of medium, but the practical questions it raises have shifted materially with the widespread use of email, messaging platforms, professional networks and social media. What was once a discrete event, involving a printed publication or a broadcast, is now often a sequence of digital communications, each of which may amount to a separate act of publication capable of founding liability.
This piece sets out the legal position on defamation as it applies to digital communication, and the practical points that arise where a claim is contemplated or defended.
What amounts to publication
For a statement to be actionable in defamation, it must be published to at least one person other than the person to whom it refers. Publication takes place when the words are communicated in a form which a third party can perceive and understand. A private message sent only to the subject of the words is not defamatory in the strict legal sense, because there has been no publication to a third party. A statement made in a group email, a professional messaging channel or a closed social media group is published to each recipient, and the person originating the message is treated as its publisher.
The apparent privacy of a closed group does not affect the legal position. What matters is whether the words reached at least one third party and were capable of lowering the subject in the estimation of reasonable members of society. The onward forwarding, screenshotting or republishing of a defamatory statement by another person creates a further act of publication, for which the originator may also bear responsibility where the further publication was reasonably foreseeable.
The serious harm threshold
Section 1 of the Defamation Act 2013 provides that a statement is not defamatory unless its publication has caused, or is likely to cause, serious harm to the reputation of the claimant. Where the claimant is a body trading for profit, the serious harm required is serious financial loss. The threshold was introduced to displace the previous common law position under which any statement tending to lower the claimant’s reputation was presumptively actionable, and it operates as a gateway test which the claimant must satisfy before a claim can proceed.
The leading authority on the application of section 1 is the Supreme Court’s decision in Lachaux v Independent Print Ltd [2019] UKSC 27, which confirmed that serious harm is to be assessed by reference to the actual impact of the words, judged on the evidence, rather than by reference to their inherent tendency to damage reputation. In Monroe v Hopkins [2017] EWHC 433 (QB), an early social media case, the court held that the serious harm threshold could be met by publications on Twitter where the reach and the nature of the platform made real reputational damage foreseeable.
For businesses, the serious financial loss requirement means that evidence of lost custom, cancelled contracts or damaged commercial relationships will generally be needed. The threshold is not a bar to a business claim, but it requires that the harm alleged is real and demonstrable rather than assumed.
The principal statutory defences
The Defamation Act 2013 restates and simplifies the principal defences to a claim. Section 2 provides a defence of truth, which succeeds where the imputation conveyed by the statement is shown to be substantially true. Section 3 provides a defence of honest opinion, which requires that the statement was an expression of opinion, that the basis of the opinion was indicated in general or specific terms, and that an honest person could have held the opinion on the basis of a fact which existed at the time of publication.
Section 4 provides a defence of publication on a matter of public interest, replacing the previous Reynolds defence. The defence applies where the statement was, or formed part of, a statement on a matter of public interest and the defendant reasonably believed that publishing the statement was in the public interest. The defence is available to publications of all kinds, including on digital platforms, and the reasonableness of the belief is assessed by reference to the circumstances as they appeared to the publisher at the time.
The single publication rule and limitation
Section 8 of the Defamation Act 2013 introduced the single publication rule. Where a person publishes a statement, and subsequently publishes the same or substantially the same statement, any cause of action in respect of the subsequent publication is treated for limitation purposes as having accrued on the date of the first publication. The effect is that a claim in defamation is generally subject to a limitation period of one year from the date of first publication under section 4A of the Limitation Act 1980, rather than a fresh one-year period on each further publication.
The rule does not apply where the manner of the subsequent publication is materially different from that of the first. Where a statement is republished in a way which reaches a materially different audience, or is presented in materially altered terms, a fresh cause of action may arise. The practical consequence is that the window in which a defamation claim can be brought is short, and the preservation of evidence in the days and weeks following first publication is often the most important early step.
Identifying anonymous publishers
A significant feature of digital defamation is that the identity of the publisher may not be apparent from the material itself. The Norwich Pharmacal jurisdiction, established by the House of Lords in Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133, allows the court to make an order requiring a third party who has become mixed up in wrongdoing (whether innocently or otherwise) to disclose information which will identify the wrongdoer. The jurisdiction is applied routinely against platform operators and internet service providers to obtain the identifying details of anonymous posters, and is a necessary precursor to substantive proceedings in many digital defamation cases.
Remedies and practical considerations
The remedies available in a successful defamation claim include damages, an injunction to restrain further publication, and, in appropriate cases, an order under section 12 of the Defamation Act 2013 requiring the defendant to publish a summary of the judgment. Damages are compensatory and reflect the extent of the harm to reputation, the distress caused, and the vindication required.
For a claimant, the most important early steps are the preservation of the offending material in its original form (including metadata and screenshots showing context and reach), the identification of every person to whom the material was published, and an assessment of the serious harm actually suffered. For a defendant, the equivalent early steps are the retention of any material supporting a defence of truth, honest opinion or public interest, and an assessment of whether an early apology, correction or offer of amends under sections 2 to 4 of the Defamation Act 1996 is appropriate.
Key authorities
Legislation
Defamation Act 2013, ss.1, 2, 3, 4, 8, 12
Defamation Act 1996, ss.2–4 (offer of amends)
Limitation Act 1980, s.4A
Cases
Lachaux v Independent Print Ltd [2019] UKSC 27
Monroe v Hopkins [2017] EWHC 433 (QB)
Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133
Speak to Ai Law
Ai Law’s Brand Protection and Dispute Resolution teams advise claimants and defendants on defamation and reputation matters, including digital publication cases involving social media, professional messaging platforms and online forums. Our approach is to assess the merits and the practical position at an early stage, and to resolve matters through correspondence and negotiation wherever the circumstances allow.
To discuss a defamation or reputation issue, please contact a member of our team.
You might also be interested to read our article on Understanding Defamation in the Social Media Era.
This does not constitute legal advice and cannot be relied upon. If you need advice please contact us and we will be happy to help.