⇒ Defamation is a tort against the reputation or good name of the claimant

• All persons are presumed to have a reputation which the law recognises as having a value worthy of legal protection
• Any ‘statement’ about a person which is capable of damaging their reputation is, prima facie, defamatory and may give rise to a claim

⇒ Claims in defamation are not confined to statements made in verbal form. Any representation is capable of founding a claim, if it could be understood as defamatory to the claimant (e.g. drawing/waxwork/photo)

⇒ The tort is to some extent a wealthy persons tort since legal aid is currently not available either to pursue, or to defend, a defamation action

⇒ Defamation consists of two separate torts: libel and slander

⇒ The main difference between them is that libel is the correct cause of action when the statement is in a permanent form; slander is where the statement is in transitory/temporary form

• The most evident distinction is between spoken words, which found a claim in slander; and written words, which lead to a claim in libel

⇒ Anything communicated in the form of permanent character and visible to the eye is libel, and anything temporary and merely audible is slander i.e. defamatory books, newspapers, letters etc. are all libels, while spoken words are slander

⇒ What is more difficult, is how to characterise things which are in permanent form but only audible, and things which are visible but not in permanent form, such as material posted on the internet

⇒ The definition of libel arose in the case of Youssoupoff (1934):

• The court said it was necessary to show not only that the communication is permanent but also that it is visible
• In the case, Slesser LJ held that the film's picture, being a “permanent matter to be seen by the eye” could be regarded as libels and said the sound recording, too, was libellous as it was “ancillary” to the visual images
• Where a sound recording exists independently of any visual image, Slesser LJ’s reasoning suggests that the liability would arise only in slander
• But this may be too narrow: a number of statutes imply that the correct test is simply whether the communication was ‘in permanent form’ (e.g. Theatres Act 1968 s4(1))
• It still remains undecided whether both permanency and visibility is needed, or whether just permanency will suffice

⇒ There are two major juridical difference between libel and slander:

• First, a libel of sufficient seriousness may be punished as a crime whereas slander is always only tortious
• Second, libel is actionable per se (i.e. without proof of damage) whereas slander, subject to exceptions (see below), is actionable only upon proof of ‘special’ damage (actual damage is probably a less misleading and therefore better phrase to use though)

⇒ Following the Defamation Act 2013, s4, there are only two categories here slander is actionable per se...

⇒ 1) To state that a person has committed a criminal offence punishable by imprisonment is actionable per se

• In other words, if someone says you have comitted a criminal offence punishable by imprisonment, that is an actionable slander without any proof that it caused you damage
• See, for example, Gray v Jones [1939]
• The words must be clear and unambiguous → if they convey a mere suspicion (e.g. of murder) they do not fall within the exception (Simmons v Mitchell 1880)

⇒ 2) Slander in respect of office, profession, calling, trade, or business

• To state that any person is unfit or incompetent to carry on their profession, business or calling is actionable per se: this is the most commonly invoked of the actionable per se categories. In other words, If you tell someone they are a rubbish solicitor there is no need to show they lost business as that is actionable per se
• At Common Law, it was necessary that the imputation was directly related to the profession, business, or office, but this has been removed by s2 of the Defamation Act 2013.
• So, now, slander will arise even if they are not said of the claimant in the actual conduct of his profession so long as the imputation they carry is designed to disparage (i.e. belittle) him in his particular calling

⇒ Slander refers to words spoken, or in a transitory/temporary form

⇒Libel is actionable per se, whereas slander generally (subject to the exceptions above) requires proof of special damage (i.e. actual injury)

⇒ It is at least clear in principle that specific and measurable economic loss is required if an allegation of special damages is to be substantiated

• So mere loss of reputation is insufficient. So too is losing friends or being shunned. And so too is a threat of material loss (Michael v Spiers and Pond 1909)
• In Allsop v Allsop (1860) it was held that physical illness as a result of the mental suffering she got following the slander was not held to be special damage

⇒ However, if the claimant loses his job (Coward v Wellington 1836) or suffers diminished trading profits as a result of the slander then that will be special damages

• By contrast, in libel, the damage must be serious (s.1 Defamation Act 2013), but does not need to have an economic or material value (unless you are a company where you must show ‘serious financial loss’)
• See, for example, Roberts v Roberts (1864)

⇒ Why liability for slander should be restricted in a way that libel has never been that convincingly explained. Hale CB (in the 17th century) suggested it was because words published contain “more malice” than words spoken

• The question whether libel should be differentiated from slander has twice been raised in official reports (Report of the Committee on Defamation 1975, for example, recommended the distinction between the two be abolished) but nothing has been done

⇒ Where the slanderous statement is repeated, is the original maker of the statement liable for the damages that flow from its repetition?

• Slipper v BBC [1991]: the court held that the D can be liable for any re-publication of the defamatory material as long as it was reasonably foreseeable
• Also see the case of McManus v Beckham [2002]

⇒ In 2013, the Defamation Act 2013 was passed; most of the provisions came into force on 1st January 2014

• The statute dealt with issues of corporations restricting free speech i.e. by introducing requirement of “serious financial harm” (see below)
• It dealt with issue of libel tourism (due to the claimant friendly courts) i.e. people from abroad using UK courts to deal with their defamation issues
• The act replaced the common law defences and created statutory defences

⇒ The Defamation act did not fundamentally change the law i.e. it does not change the nature of what a defamatory statement is

⇒ It simply deals with some of the criticisms of defamation law i.e. deal with ‘libel tourism’

⇒ At Common Law, a personal action for defamation dies with the person (actio personalis moritur cum persona) i.e. you can only defame someone who is alive

⇒ However, by the Law Reform (Miscellaneous Provisions) Act 1934, all causes of action in tort survive death, and may be continued by or against the personal representatives, with the exception of actions for defamation.

⇒ Dead people cannot sue for libel: Wright v Gladstone

⇒ Both people and companies can be defamed (see below)

⇒ Government bodies, including local authorities, cannot bring an action for defamation

• What has been described as "the chilling effect" induced by the threat of civil actions for libel is very important: see the case of Derbyshire CC v Times Newspapers [1993]

⇒ Political parties are also unable to bring a claim, for the same reasons: Goldsmith v Bhoyrul [1998]

⇒ However, politicians and individuals who work for a Government body can bring a claim (even if the matter relates to the way they carry out their duties): Bookbinder v Tebbitt [1989]

⇒ Universities are not public bodies for the purposes of bringing a claim for defamation, so they can bring claims in defamation and so can the members of staff: University of Salford v Duke [2013]