What to do if someone makes a defamatory comment about you by Rebecca Sloan

Rebecca Sloan of Kinetic Communications

On Tuesday 30th November, I ran a talk on measuring and managing corporate reputation in the 21st century for Birmingham’s Women in Business Association (WiBA).

One topic of particular interest to attendees was how to handle a defamatory comment made online.  In response, I’ve compiled a basic factsheet to help you identify when a comment is ‘fair’ and when it’s crossed the line into defamation. (NB this is only a guide.  Legal advice should be sought before pursuing a claim).

A basic guide to defamation:

A statement about a person is defamatory if it tends to do any one of the following:

1)            exposes him to hatred, ridicule or contempt;
2)            causes him to be shunned or avoided;
3)            lowers him in the estimation of right-thinking members of society generally; or
4)            disparages him in his business, trade, office or profession.

The defamed person does NOT have to prove that the statement is false or that he has been damaged in any way.  He needs to show only that the statement tends to discredit him.

What’s the test for defamation?

The test for juries is whether, under the circumstances in which the statement was published, reasonable men and women to whom the publication was made would be likely to understand it in a defamatory sense.

What the claimant must prove

To succeed in an action for defamation, a claimant must prove three things about the statement he is complaining about:

1)            it is defamatory
2)            it may be reasonably understood to refer to him.

The claimant must prove the words of which he complains of identify him as the person defamed. The test of whether the words identified the person suing is whether they would reasonably lead people acquainted with him to believe that he was the person referred to.  It is not necessary that the entire world should understand the libel; it is sufficient if those who know the claimant can make out that he is the person meant.

3)            it has been published to a third person.

NB: every repetition of a libel is a fresh publication and creates a fresh cause of action.

Who can sue?

1)            Individuals
2)            Corporations – if the comment is capable of injuring its trading reputation or if the company has a corporate reputation distinct from that of its members which is capable of being damaged by a defamatory statement.

Exceptions:  associations, such as a club, cannot sue unless it is an incorporated body but words disparaging an association will almost invariably reflect upon the reputations of one or more of the officials who, as individuals, can sue.

Please note, although this guide will equip you with a basic knowledge of defamation, it is by no means an expansive guide.  Always seek legal advice before pursuing a claim.  Alternatively, if you’d like to discuss this in further detail beforehand, then get in touch!

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