Defamation Law and Freedom of Expression

The Defamation Act 2013 came into force in England and Wales on 1 January 2014. It was introduced following concerns that the previous law could discourage legitimate criticism, investigative journalism, academic discussion and scientific debate.

The Act attempts to balance two important rights: freedom of expression and the right of individuals and organisations to protect their reputations from seriously damaging statements.

What Is Defamation?

Defamation generally involves publishing a statement about a person or organisation that causes serious harm to their reputation.

Written or permanently recorded defamation is commonly known as libel. Spoken defamation is generally known as slander.

A statement must normally be communicated to at least one person other than the individual or organisation concerned. A private insult sent only to the person it concerns will not usually amount to defamation because it has not been published to anyone else.

The Serious Harm Test

Under the Defamation Act 2013, a statement is not defamatory unless its publication has caused, or is likely to cause, serious harm to the claimant's reputation.

This threshold is intended to prevent claims involving minor criticism, trivial insults or statements that have caused no meaningful reputational damage.

The court may consider:

• What the statement meant
• How widely it was published
• Who received or read it
• The claimant's existing reputation
• The actual or likely consequences of publication
• Whether the allegation was repeated or widely shared

The fact that a statement is offensive or upsetting does not necessarily mean that it satisfies the serious harm test.

Companies and Serious Financial Loss

A body trading for profit must show that the statement has caused, or is likely to cause, serious financial loss.

A company cannot usually establish a claim merely by showing that an allegation was embarrassing or critical. Evidence may be required showing lost customers, contracts, revenue or some other serious financial consequence.

Is Defamation a Criminal Offence?

Defamation is generally dealt with as a civil claim in England and Wales. A claimant may seek compensation, an injunction, removal of material, a correction or an apology.

It is therefore usually incorrect to describe a person as being prosecuted under the Defamation Act.

However, the same publication may potentially involve separate criminal offences where it contains threats, harassment, stalking, malicious communications or incitement.

The Defence of Truth

It is a defence to show that the allegation conveyed by the statement was substantially true.

The defendant does not normally need to prove that every minor detail was completely accurate. The question is whether the essential defamatory allegation was substantially true.

A person intending to publish a serious accusation should retain reliable evidence supporting it. Simply believing that an allegation is true will not necessarily establish the defence.

The Defence of Honest Opinion

The Act provides a defence for an honestly held opinion.

The statement must be recognisable as an opinion rather than a statement of fact. It must also indicate, in general or specific terms, the basis on which the opinion is held.

An honest person must have been capable of holding the opinion based on facts existing at the time or material contained in a privileged statement.

Adding phrases such as "in my opinion" will not automatically protect a statement that is presented as a factual allegation.

Publication on a Matter of Public Interest

A defence may apply where:

• The statement concerned a matter of public interest
• The defendant reasonably believed that publishing it was in the public interest

This defence can protect responsible journalism and other publications addressing matters of legitimate public concern.

The court will consider all the circumstances. The defence is not limited to professional journalists, but merely claiming that the public would be interested in an allegation is not enough.

Scientific and Academic Publications

The Act gives qualified privilege to statements published in scientific or academic journals where the statement relates to a scientific or academic matter and has been independently reviewed before publication.

This protection was intended to support legitimate research, peer review and academic debate without providing immunity for malicious or irresponsible allegations.

Reports of Court and Public Proceedings

Fair and accurate reports of specified court, parliamentary and public proceedings may be protected by absolute or qualified privilege.

The type of protection depends on the occasion and the statutory requirements. A report that is inaccurate, unfair or published maliciously may not receive the same protection.

Website Operators and User Comments

Section 5 of the Defamation Act provides a defence for website operators where defamatory material was posted by another person.

The defence is not automatic. When an operator receives a valid notice of complaint, it must follow the procedure set out in the Defamation (Operators of Websites) Regulations 2013 if it wishes to rely on the statutory protection.

The process may involve contacting the person who posted the statement and providing an opportunity for the dispute to be addressed directly.

The defence may be unavailable where:

• The claimant could not identify the person who posted the statement
• The claimant gave the operator a valid notice of complaint
• The operator failed to respond in accordance with the regulations
• The operator acted with malice

Website owners should therefore maintain a clear complaints procedure and respond promptly to allegations of defamatory user content.

Social Media and Online Reviews

Defamation law applies to social-media posts, online reviews, blogs, forums, videos, emails and messages sent to groups.

Repeating or sharing another person's allegation can amount to a fresh publication. A person cannot necessarily avoid responsibility by saying that they were only repeating what someone else had said.

A strongly worded negative review is not automatically defamatory. Consumers are entitled to describe genuine experiences and express honest opinions. Problems arise where serious factual allegations are false, unsupported or exaggerated.

The Single Publication Rule

The Act introduced a single publication rule intended to limit repeated claims involving substantially the same material published by the same person.

The limitation period will not normally restart every time an archived article or webpage is downloaded or viewed again.

A materially different republication may create a new cause of action, particularly where the manner or scale of publication is substantially different.

Time Limits

A defamation claim must normally be started within one year of the date on which the statement was first published.

The court has limited discretion to allow a claim outside that period where it would be equitable to do so, but a claimant should not assume that an extension will be granted.

Anyone considering a claim should obtain specialist advice promptly.

Libel Tourism

The Act introduced tighter jurisdictional rules for claims against people who are not domiciled in the UK, another EU member state at the relevant time, or a state covered by the applicable jurisdiction rules.

The court must be satisfied that England and Wales are clearly the most appropriate place to bring the claim.

This was intended to discourage claims with only a weak connection to this jurisdiction.

Remedies for Defamation

A successful claimant may seek:

• Compensation for reputational harm
• Compensation for financial loss where proved
• An injunction preventing further publication
• Removal or correction of the statement
• Publication of a summary of thecourt'ss judgment
• Recovery of some legal costs

Courts may also consider offers of amends, corrections and apologies when determining how a case should be resolved.

What Should You Do if You Are Defamed?

Keep copies of the publication, screenshots, website addresses, dates and details of the people who received it. Record any loss of work, customers or other consequences.

Do not immediately respond with threats or repeat the allegation more widely. A solicitor may recommend sending a formal letter seeking removal, undertakings, a correction or an apology before court proceedings are considered.

Defamation cases can be expensive. The seriousness of the harm, likely remedies and ability of the defendant to pay should be considered before a claim is issued.

What Should You Do Before Publishing Criticism?

Before publishing a serious allegation:

• Check the facts carefully
• Keep evidence supporting the statement
• Separate factual allegations from opinion
• Consider allowing the subject to respond
• Avoid unnecessary exaggeration
• Consider whether naming the person is necessary
• Seek legal advice where the allegation could cause serious harm

Freedom of expression protects robust criticism, but it does not provide a general right to publish false and seriously damaging allegations.

Defamation Law in Scotland

The Defamation Act 2013 does not generally govern Scottish defamation claims.

Scotland introduced the Defamation and Malicious Publication (Scotland) Act 2021. It modernised Scottish law and introduced provisions dealing with serious harm, defences, secondary publishers, limitation and malicious publication.

A person involved in a Scottish dispute should obtain advice from a solicitor familiar with Scottish law.

Defamation Law in Northern Ireland

The position in Northern Ireland has also changed since the original article was written.

The Defamation Act (Northern Ireland) 2022 introduced reforms including statutory defences of truth, honest opinion and publication on a matter of public interest.

The precise rules are not identical across England and Wales, Scotland and Northern Ireland. The relevant jurisdiction should be established before advice is given or proceedings are started.

Balancing Reputation and Free Speech

The Defamation Act 2013 did not give journalists, academics, scientists or members of the public unlimited freedom to publish damaging accusations.

It introduced clearer thresholds and defences intended to discourage trivial claims and protect legitimate expression while preserving a remedy for people and organisations whose reputations suffer serious harm.

Whether a statement is defamatory will depend on its meaning, factual basis, audience, context and effect.

Getting Legal Advice

Defamation claims are legally and procedurally complex. A solicitor specialising in media, reputation management or defamation law can advise on threatened publication, removing online content, responding to a complaint, seeking an injunction or bringing or defending a claim.

Advice should be obtained quickly because of the one-year limitation period and the speed with which material can spread online.

Disclaimer

Solicitors.com is not a firm of solicitors and does not provide legal advice. This page provides general information only and should not replace advice from a regulated solicitor. Defamation law differs across the UK, and the legal position will depend on the statement, publication, evidence and jurisdiction involved.

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