Client guidance note

Taking action against online defamation

What does defamatory mean? In the case of a ‘body that trades for profit’ (for example, a company), it is not A defamatory statement is a false ‘serious harm’ unless it has caused, or is likely statement of fact that exposes a person to cause, ‘serious financial loss’. or business to hatred, ridicule, or contempt, causing them serious harm There are various other criteria which need to (and in the case of a business, serious be met before a defamation claim can be financial harm). brought. We regularly advise clients on taking action in claims of online defamation ‘Defamation’ is an umbrella term, and can offer fixed prices for each stage of the covering both libel and slander. process, providing certainty and reassurance.

Libel typically involves ‘lasting’ forms of Set out below are the key steps in the process publication (in writing), such as print or of tackling defamation online and commentary online statements – a tweet, for example, on how we can offer support and assistance at – whereas slander is more transient and each stage. includes spoken words or gestures, such as a video on YouTube or The first important point to note is the short Snapchat. timescale you have in which to bring a claim, as explained below. Defamation via social media Limited time Whether defamatory statements are made deliberately, with a malicious If you believe you have been defamed, it is intent to ‘troll’ and harass, or important to seek advice without delay. unknowingly, without an intention to cause damage, such comments can The limitation period (the time in which you cause considerable reputational can issue a claim at court) for defamation is damage. only 1 year from the date of publication of the defamatory statement. This is particularly the case when social media is involved as the comments can This is a much shorter period than is typically be spread very rapidly and potentially the case for other court claims (which can be reach a very large audience. 6 to 10 years).

Serious harm Each new publication of the defamatory statement, in substantially the same form, will The threshold for bringing a legal claim not reset the limitation countdown. for defamation is a high one: the statement is not defamatory unless its Cripps can help by advising on the likely publication has caused, or is likely to date by which a claim should be issued in cause, ‘serious harm’ to the reputation of court. the claimant. Once the deadline is identified, an effective For an individual, injury to feelings alone action plan can be devised, which may will not be sufficient. It will still be include some or all of the actions set out necessary to show serious harm to the below. person’s reputation.

Cripps LLP T +44 (0)1892 515 121 This publication gives general guidance only. It may not always apply and should not be relied on in place of specific legal advice. Number 22 F +44 (0)1892 544 878 We use the word “partner” to refer to a member of the LLP, or an Mount Ephraim E [email protected] employee or consultant who is a lawyer with equivalent standing and qualifications. 17381212.1 Tunbridge Wells DX 3954 Tunbridge Wells Kent TN4 8AS www.cripps.co.uk

Taking action Contact the social media platform A take down request can be filed in addition In light of the relatively short limitation to sending a Letter before Action (which is period for defamation claims, it is directed at the author of the statement). important not to delay in engaging with the publisher of the defamatory Social media platforms have terms of service statement. which prohibit malicious and defamatory content from being posted. The high costs of taking a defamation claim to trial mean that there are Reporting functions are available on the main benefits for both sides in resolving the social media platforms to request the take dispute before a claim is issued in court. down of objectionable content.

Letter before Action Whilst it is not necessary to instruct a solicitor The first step in engaging the other side to file a report, they can provide useful is normally to send a Letter before assistance in the drafting of the complaint. Action. Cripps can help by: There is no ‘one size fits all’ and so the letter must be carefully drafted to • advising on the correct procedure and ensure that it includes relevant drafting the report/complaint to be filed; information and demands the and appropriate remedies, which may • liaising with the social media platform on include all or some of the following: any response received and/or queries raised. • a takedown and retraction of the defamatory statement; Contact the ISP • an undertaking not to repeat the In certain circumstances, it may be possible to same or similar comments; send a Take Down notice to the ISP • a payment of compensatory (Internet Service Provider) hosting a website damages; and displaying defamatory content. • an apology. Unless procedures are followed and It is important for a claimant to get the timescales are met, under the Defamation Act letter setting out the claim right at the 2013 and the Defamation (Operators of outset; presenting their case in the Websites) Regulations 2013, an ISP may be strongest way, to have maximum held liable as a secondary publisher of impact. defamatory material.

Cripps can help by: Cripps can help by:

• advising on the merits of the claim • advising on the ‘Notice and Take Down’ (and any other potential actions procedure (the law around this can be which may be possible in addition to complex); and a defamation claim); • drafting and sending an appropriate Take • drafting the Letter before Action; Down Notice. • advising on any response received, including the implications of any ‘offer to make amends’ made by the defendant (under the provisions of the Defamation Act 1996); and • advising on alternative dispute resolution methods including mediation.

2 17381212.1 Alternative dispute resolution other factors when assessing the likely (ADR) level and form of damages); • a permanent injunction; Even in the most bitter of disputes, the • an order removing the defamatory courts encourage parties to seek statement; and settlement of their dispute through ADR. • an order requiring the judgment to be published somewhere public by the ADR may be negotiating settlement defendant. through an exchange of ‘without • In a claim for defamation, the party prejudice’ correspondence, or it may bringing the action does not need to be a mediation process. establish any sort of intention to defame; all they need to do is establish that a In light of the costs of pursuing a statement is defamatory. The focus will defamation claim through the courts, then shift to the defendant to establish a ADR is potentially a very attractive and valid defence. The most common effective option. ADR can be run defences are ‘truth’, ‘honest opinion’ and alongside formal ‘open’ ‘qualified privilege’. correspondence. Cripps can help by: ADR should not be seen as a ‘second best’ resolution or outcome for • advising on potential defences that may a claimant, as it can offer distinct be relevant in the circumstances of the advantages over court proceedings. case; and For example, an apology is not a remedy available at trial, however an • advising whether the presence of malice apology can form part of a negotiated could affect the merits of the claim and any settlement in ADR. defence raised.

Cripps can help by advising on the Companies ADR options available, formulating a A defamed company may also consider, as an strategy to achieve an early settlement alternative to a defamation claim, a claim for of the dispute. ‘malicious falsehood’. Where a statement goes beyond mere comparative advertising Court Proceedings and slanders a company’s products for If the above steps do not lead to example, a claim for malicious falsehood may resolution of the dispute, the next stage be possible. is to consider issuing a claim in court. Even before initial correspondence is sent, This is not a decision to be taken likely however, it is important to consider the however, because of the costs and risks potential risks of pursuing a matter. of doing so. Cripps can help by: Cripps can help by: • advising on the options available to a • advising on the merits of the claim; defamed company, including whether a • advising on likely legal costs and the claim for malicious falsehood may be risks if unsuccessful; and possible as an alternative to a defamation • advising on the remedies the court claim; may award at trial. • advising on strategy in tackling malicious statements; Possible remedies include: • advising on other potential legal claims including Passing-Off; and • damages (the court will asses the • advising on the potential alternatives to gravity of the libel and numerous legal action.

3 17381212.1 Conclusion

There are various options potentially This guidance note is not intended as specific available to a party that has been legal advice. Each case is judged on its own defamed, and no ‘one size fits all’. merits, against its own particular set of facts and will typically involve an objective The relatively short limitation period in assessment by the court of the precise words which a defamation claim can be used. brought means initial advice should be sought without delay, from a lawyer The law relating to defamation is complex and specialised in this field. constantly developing. The purpose of this note is to assist in providing an overall understanding of the legal context within which such claims operate.

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