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Disclaimer: This is a general introduction to defamation. It is not a comprehensive account of the law nor should it be relied upon to make any judgment as to whether content is potentially defamatory. You should always take specific legal advice.

Introduction

Defamation is the area of law governing the right of an individual or corporate body not to have his/her reputation damaged by others.  When one person publishes to another person an untrue statement about a third party that lowers that third party in the estimation of right-thinking people generally, that third party will have the right to sue everyone responsible for the making of the statement - including writers, editors, publishers, proprietors and internet hosts.  They may seek damages, a retraction of the statement, a public apology and/or an injunction to prevent further publication.  Defences to defamation actions include truth in substance, honest comment and qualified privilege, among others.

Tips

• Double-check your facts and ensure that the statements you make do not go beyond your evidential base – if challenged, the onus will be on you to prove the statement is substantially true;
• Choose your words carefully – consider potential multiple meanings of statements and their context;
• Identify potentially contentious material pre-publication and anticipate potential defences;
• Avoid making statements of opinion based on unsubstantiated facts;
• Decide on a policy regarding user-generated content on your website (e.g. readers’ comments at the bottom of articles) and stick to it – either pre-moderate everything but accept liability for publication, or pre-moderate nothing but offer a clear “notice-and-take-down” procedure to aggrieved subjects of comments;
• React swiftly upon receiving complaints;
• Consult legal experts if in doubt – it may be cheaper in the long run!

What Next?

Defamation law is complex, controversial and due for overhaul in new legislation expected to come into force in 2011.  If in doubt, consult an expert before publication – the decision whether to publish a potentially defamatory statement will always depend on the specific facts of the situation.

Courtesy of:
Mark Scodie
Bates Wells & Braithwaite London LLP