FAQ's for Libel and Privacy
What is the difference between libel and slander?
Defamation is the general term for libel and slander. Where the defamation is in writing or some other permanent form it is a libel. Where it is spoken or in some other temporary form it is slander.
What must the Claimant prove?
In order to bring a defamation action a Claimant must prove that the Defendant has published or is responsible for the publication of a defamatory allegation which is understood to refer to him.
What is Publication?
Publication means communicating the allegation to another person or persons. It could be one person as in the case of a letter or millions as in the case of a national newspaper. It could be in writing, on a computer or, in one instance, by putting a waxwork of the Claimant in the Chambers of Horrors.
What is a Defamatory Allegation?
A defamatory allegation is one which would either tend to make people think the worse of the Claimant, or avoid him, or expose him to ridicule.
Does the Publication have to refer to the Claimant by name?
Generally the Claimant will be named and the issue will not arise, however an unnamed but identifiable Claimant will be able to sue. So too might a person who shares the same name as the intended target of the publication. A publication must be understood to refer to the Claimant.
Are there any differences in Slander Actions?
In certain slander actions the Claimant must also prove financial loss except for four exceptional circumstances (namely, an allegation that a party is guilty of a criminal offence; an allegation that the party is suffering from a contagious or infectious disease; an accusation that a woman is unchaste or adulterous; or an allegation which is calculated to damage a party’s standing in their profession, trade or business).
How could my opponent defend himself against me?
The three most common defences that could be used are as follows: JUSTIFICATION Justification really means “the truth”. The Defendant must show that the allegations complained of is factual as opposed to comment and is true or substantially true. Immaterial errors will therefore not prevent the Defendant from succeeding. FAIR COMMENT The fair comment defence protects statements of comment or opinion as opposed to statements of fact. The word fair is inappropriate, because the comment or opinion could be exaggerated or prejudiced provided it is honestly held. The opinion, however, must be based on facts which are true or sufficiently true and relates to a matter of public interest. PRIVILEGE In certain circumstances, the law regards freedom of speech to be more important that the protection of reputation and allegations which may be false and defamatory will nevertheless be protected by the defence of privilege. The most widely made examples are proceedings in the Courts and Parliament. However, the defence is flexible and covers any situation where it is felt to be of overriding importance that people should be free to speak their mind (e.g. certain business communications and public meetings).
What if the matter does not settle within the protocol?
The next stage would be the issue of court proceedings. Alternatively, the client could decide not to take the matter any further.
How would I proceed with a claim?
The Pre-Action Protocol for Defamation Actions must be followed. There are potential costs sanctions for a party that fails to comply (even if they ultimately win the case). Therefore in our standard Letter Before Action, we are required to write about the following:- • • • • Details of the background to the matter. Identification of relevant publication(s). An outline of the complaint. Details of the words complained of and their ordinary and natural meaning. • Details of the Claimant’s position. • Details of the actions that we will require the opponent to take and details of when this action should be taken by. • Details of what actions our client will potentially take if the opponent does not comply. • A draft undertaking, a draft apology and a copy of the Pre-Action Protocol for Defamation. We usually ask that replies from opponents are received within 7 days of the issue of the letter before action.
Will I get a apology?
A Judge or Jury cannot force a Defendant to apologise. However, where the Claimant succeeds under the summary procedure the Defendant can be compelled to publish a summary of the Court’s Judgment. Furthermore, a newspaper or magazine Defendant is likely to be bound by the Press Complaints Commission Code of Conduct which requires them to report the outcome of proceedings in which they have been involved.
What happens if I win?
If the Claimant wins, he is entitled to damages which is an award of money to be paid to person as compensation for loss or injury, and usually an injunction. An injunction is a Court Order restraining the Defendant from publishing the same or similar defamatory allegations. If the Defendant breaches the injunction he can be fined or sent to prison for contempt of Court. We usually also ask for a statement in open court or publication of the court’s judgment (in lieu of the apology offered).
Can I recover my costs ?
Costs will generally be paid by the Defendant if the Claimant wins and vice versa. It is often the case that the winning party does not recover all of his costs.
What are the likely timescales ?
Set out below are the steps that will normally take place in a defamation claim. It is rarely the case that the claim proceeds at such a pace, and the Court has the power to grant extensions of time. Furthermore, any interim application will slow down the action. • Claim Form. • Particulars of Claim (Claimant) – must be filed and served with the Claim Form or within 14 days of service of the Claim Form or within four months from the date of issue of the Claim Form, whichever is the earlier. • Acknowledgment of Service (optional – Defendant) – within 14 days after service of the Particulars of Claim. • Defence (Defendant) – within 14 days after service of the Particulars of Claim or if the Defendant files an Acknowledgment of Services 28 days after service of the Particulars of Claim. • Allocation Questionnaire (both parties) – once the Defence is filed, the Court automatically sends the parties an Allocation Questionnaire, which must be completed and filed with the Court by a date specified by the Court (usually within 14 days). • Reply (Claimant) – filed and served at the same time as the Allocation Questionnaire. A Reply is not always necessary. • Directions for managing the case – the Allocation Questionnaire will ask for proposed directions. A Case Management Conference will generally only be listed at this stage if the parties have not agreed directions. Where the directions are agreed the Court will generally make an Order putting them into effect. • Disclosure inspection of documents – usually 14 days after the Directions Order. • Exchange of witness statements – usually around six weeks after the Directions Order. • Case Management Conference – usually fixed for a date shortly after exchange of witness statements or, if directions cannot be agreed or the case is complicated, after the filing of Allocation Questionnaires. • Trial – this will take place within the trial window, which is usually determined at the Case Management Conference. The Clerk of the Lists will arrange an appointment to fix a date for the trial within that window. • Detailed assessment – where a party wins the action, their costs bill must be lodged within three months of the Judgment. The Assessment Hearing will usually take place within two months of the bill being lodged. • Appeal – the Notice of Appeal (on notice of application for permission to appeal) must be filed at the Appeal Court within either the period directed by the Lower Court or 14 days after the date of the decision of the Lower Court. Currently the target dates set by the Court of Appeal for the hearing of appeals are nine months after it enters the Court’s records in the case of a final appeal and eight months in the case of an interlocutory appeal. The Court can hear expedited appeals.
Disclaimer
The answers to these questions contained in this FAQ document are very general in nature and should not be relied upon in relation to any specific set of circumstances. Specific advice should be sought from Cohen Cramer in relation to your specific circumstances.
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