Need to know

In high dudgeon, a client angrily seeks advice and assistance. He has been defamed, or so he says. He is strongly objecting to something somebody has said in a published letter or journal, in a media report, or orally at a public meeting. 

“It’s all lies”, he states. He wants lots of compensation; and he wants an apology, a humiliating and grovelling apology. And he wants to sue if there is no instant response from the alleged wrongdoer. 

The solicitor may not be a specialist defamation lawyer – and even if they are, they know that embarking on litigation in this sort of situation is dangerous and only to be taken as a last resort. A settlement of some kind is the only sensible solution. 

The nature of the alleged defamation may be very serious, or rather trivial. The sort of situations that have come before the courts include accusations of rape or other sexual abuse; an MP accused of misleading parliament; an uncomplimentary comment by a political opponent; a police officer or similar public servant accused of taking bribes; a bank employee accused of fraud; a charitable worker accused of neglecting the poor; or a minor peccadillo which is unlikely to excite a judge. 

Truth is an absolute defence to a defamation claim, though truth can be a many-sided thing and not always so easy to establish. The other defence is publication on a matter of public interest under section 4 of the Defamation Act 2013.

It is for the judge – who has a wide discretion – to decide what is a matter of public interest. The prurient interest of some people in the sexual activities of other individuals is most unlikely to qualify. However, the sexual activities of a senior public figure entrusted with state secrets and vulnerable to blackmail might well qualify. 

The defence also requires that the defendant reasonably believed that publishing the statement complained of was in the public interest. This suggests that an objective test and not a subjective test should be applied.

If the statement formed part of an accurate and impartial account of a dispute, for example, it was made by a responsible journalist, that journalist is not required to verify the truth of the imputation conveyed. Also, the judgement of the editor must be allowed for where appropriate. 

All the relevant circumstances must be taken into account, along with the right to respect for private and family life under article 8, and respect for freedom of speech under article 10. This is a balancing exercise for the judge.

What must expressly not be taken into account is the old, pre-2013 law as set out in Reynolds v Times Newspapers Ltd [2001] 2 AC 127. To reiterate, only the statutory law comprised in the 2013 Act, along with any judicial interpretation of it since, is now relevant.

That said, in Reynolds Lord Nicholls did give a useful checklist for counsel and solicitors. Today, lawyers must not cite Nicholls from his ruling, but instead must confine themselves to a sneak reading and utilise such ideas that they may find useful in their negotiations with the other side or in the course of their advocacy. 

The vagaries of defamation law are such that the matter must be settled at all costs. If resort to counsel really is necessary, then look for experienced counsel who are conciliatory but firm rather than those who are impetuous or aggressive. The risks of litigation are just too high.

Alec Samuels is a barrister