Defamation – the requirement for serious harm or serious financial harm
We have seen an increase in the number of enquiries from individuals and businesses, requiring advice regarding defamation law and in particular, libel.
Generally speaking, a statement is defamatory if it lowers the opinion of that business or individual amongst “right thinking reasonable members of society”. A careful consideration of the exact words used, and the relevant imputations will need to be undertaken to consider if the statement is defamatory. An example of a statement would be the publication on Google of a review from a customer, stating that a business charged excessively over an estimate for their services and that business was verbally abusive towards that customer on the telephone (when the business was in fact friendly on the phone and a fair price was charged in line with an estimate).
Requirement for serious harm or serious financial harm
In order to have an actionable claim for defamation, an individual must prove that the statement complained of has caused or is likely to cause serious harm to their reputation.
For companies, they are required to prove that the statement has caused or is likely to cause them serious financial loss.
This requirement for serious harm or serious financial harm, is a considerable threshold for individuals or companies to meet and early legal advice should be taken to consider the merits of any action and if this threshold is met.
It is possible for a defamatory statement to be made online about an individual but it to not be actionable as it fails to meet the requirement of causing that individual “serious harm”.
Potential defences
It is also worth mentioning briefly, that a number of defences can be raised in defamation claims: truth, honest opinion, publication on a matter of public interest and privilege. With for example, the honest opinion defence, it is a defence to a defamation claim if the person who made the statement can show what they published was an opinion, the statement explains the basis for the opinion held and an honest person could have held that opinion based on the surrounding facts that existed at the time the statement was made.
Time limit for bringing a claim
Given that individuals or businesses considering whether they have a potential defamation claim, have just 12 months from the date of the publication to start legal proceedings, legal advice should be taken as soon as possible.
Before proceedings are issued, time will be required to obtain early legal advice on the merits of any claim (including a consideration of whether the serious harm/serious financial harm threshold is met) and to ensure compliance with Pre-Action Protocol for Media and Communication Claims, that requires a Letter of Claim to be sent and the potential Defendant to provide a letter of response, before the commencement of legal proceedings.
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