Defamation: What does it include and how can you respond?

Defamation and personal attacks can carry substantial implications for both individuals and businesses, impacting reputation and integrity. These ramifications can extend beyond the surface level, eroding trust, tarnishing public professional image, and damaging overall credibility.

Consequently, scepticism can permeate the individual's environment, posing significant risks to their business, professional associations, and personal relationships - often leading to substantial financial repercussions. Furthermore, such attacks can also have severe emotional and psychological effects in the individual and result in a decline in overall health and well-being.

Despite the introduction of the Defamation Act in 2013, the number of defamation cases continued to rise with a 127% increase in defamation claims by the end of the decade. According to the UK Parliament, the 2013 Defamation Act was designed to reform defamation law to achieve a fair balance between the right to freedom of expression and the protection of reputation. It is essential to strike the appropriate balance between safeguarding individuals' reputations and their right to free speech, making defamation claims challenging to prove in court.

However, in numerous cases, clients endure persistent defamation that leads to continuous harassment and threats, placing them in an extremely challenging position where they feel trapped with no apparent solution. In such circumstances, a prompt and effective resolution becomes imperative.

What counts as defamation?

For an incident to be defined as defamation, the following five criteria must be met:

Firstly, the information must be published in a publicly accessible forum. This could be a global online publication or even a false statement shared via email with one person. In the case of slander, it could be a verbal statement shared with at least one other person.

Secondly, the individual being defamed must be identified in a way that leaves no room for it to be someone else. For instance, stating "all politicians are corrupt" would not be considered slanderous. However, publishing "Donald Trump is corrupt" or "the US President who won the 2016 election is corrupt" could qualify.

Thirdly, the information shared must negatively impact the person's reputation in the eyes of the public or others.

Fourthly, the information must be demonstrably false. For example, stating someone is unfaithful in their marriage would not be defamation if it were true.

Finally, the accused must be at fault. If someone is misquoted after a TV interview, they cannot be held accountable for defamation.

Why has there been a rise in defamation cases?

Despite stricter laws being implemented to address defamation, the number of cases continues to rise. This can be attributed, in part, to the increased prevalence of social media in today’s Information Age, making it easier for individuals to share opinions, facts, and news stories at an unprecedented rate.

The rise of social media has also led to an increase in defamation cases in the workplace, which can result in severe consequences, including loss of employment and harm to one's reputation. This phenomenon was especially pronounced during the COVID-19 pandemic, as numerous people were laid off, leaving former employees disgruntled.

Many individuals used platforms such as LinkedIn to express their disappointment and frustration with their employer for causing them to lose their job. While posting one negative comment about an employer does not constitute defamation, continuous negative comments or widespread publication of such comments may prompt a company to take legal action, as they may perceive their reputation to be at risk.

Proving harm to reputation can be a difficult task in defamation cases, particularly in cases involving public figures. In order to be successful, the plaintiff must provide evidence that the defamatory statement has caused or is likely to cause serious harm to their reputation. This can include evidence of damage to their personal or professional relationships, loss of income or business opportunities, or damage to their public image.

What can be done?

Defamation cases can be deeply personal and can take various forms, such as online harassment, trolling, stalking, physical threats, and even violence.

In many cases, identifying those responsible, and considering legal recourse will give the best chance of both stopping defamation, and potentially leading to defamatory content being removed, apologised for, and in some cases, compensation provided (or other recompense).

To aid in defamation cases, it is evidently important to demonstrate that the allegations are tangibly false, which is often done in consultation with the client and any legal team (either in house or working with specialist lawyers).

It is also advisable to engage with a specialist crisis comms team, who can advise on a wider strategy, to ensure that the correct message is being projected.

In order to deal with the individual or organisation committing the defamation, wider investigation is often required to pinpoint the source of defamatory statements, identify those responsible, and gather evidence to support legal action.

This usually involves:

• Capturing defamatory material in a forensic manner, to ensure that this evidence is robust, and retained – often posts are deleted and so capturing these as soon as possible is advised.
• Conducting deeper investigation into the individuals concerned, or analysis around the profiles involved (if anonymous/pseudonyms). Careful investigation can lead to tangible leads, to identify those responsible.
• Wider open and closed source investigation into the subjects involved, to obtain ‘real world’ identities, addresses, telephone numbers and emails, to assist with litigation.
• Production of an expert report, and accompanying witness statements/affidavits, to support the court or any proceedings.

Once the investigation is complete, a decision may be taken on how best to proceed. This often involves:

• Liaison with hosting platforms, to have defamatory content removed;
• Writing to those involved, requesting they refrain from posting further content;
• Service cease and desist letters on those involved;
• Obtaining injunctions, or other court orders, to prevent further defamation and seeking compensation;
• Considering criminal prosecutions (such as private prosecutions), should criminal offences be identified.

In summary, dealing with defamation is often a complex issue, combined with personal sensitivities and the regular problem of online anonymity.

Having a clear strategy, in terms of prevention, crisis comms, investigation, and a legal response, is key to ensuring that the facts are publicly available, prevent ongoing defamation, and reduce the risk of escalation.

At AnotherDay, we help our clients to respond to a crisis, prevent further allegations being made, and allow them to get their careers, personal lives and operations back on track. To learn how we can help you, contact our team today.