A major barrier for activists in speaking out against animal oppression, or publicising the results of investigations, can be the threat of defamation proceedings. Those of us of a certain age will remember the “McLibel” case. But, are defamation proceedings something you really need to worry about? Well, with a little foreknowledge, probably not.
Guest writer and barrister Alan Robertshaw has set out a general, and hopefully practical, guide as to what defamation is; so you’ll be able to protect yourself from the threat of proceedings, but still be able to speak out or report.
Definition of Defamation
Let’s start with what defamation actually is.
Simply put, it’s publishing an untrue statement of fact about a person that would tend to make “right minded” members of society think less of them.
Now, to break that down a bit:
Publishing means communicating to a third party; it doesn’t apply to personal conversations you can say what you want to someone’s face.
Be careful though of inadvertently publishing to a third party. Make sure you can’t be overheard; and if you write to someone, or email them, mark the envelope or email header “Private and Confidential. To be opened by addressee only.” That way, if the recipient allows someone else access to their mail, they’re deemed to have consented to the publication.
You can be regarded as publishing someone else’s statement if you refer to it, or facilitate its dissemination; for instance by allowing comments on your website. There are special protections however in such circumstances.
Untrue just has its everyday meaning.
One unusual feature of defamation, is that generally it's for the Defendant (the person who made the statement) to prove it’s true. The Claimant (the person the statement was about) doesn’t have to prove it’s false. That’s counter to the usual rule in civil cases that it’s for the Claimant to prove their case.
In civil cases the standard of proof is ‘the balance of probabilities”; that’s just “is it more likely than not?”, which is often expressed as “greater than 50%”. That’s very different to criminal law where the standard is “So that you are sure” or, as they only say on TV, “beyond reasonable doubt”.
Statement is usually words; written or spoken; but it doesn’t have to be. Pictures , gestures, indeed any way of communicating can all amount to a statement. Placing someone’s waxwork next to the chamber of horrors was held to be defamatory; so who knows what the courts will make of memes?
The statement has to be taken as a whole though; in the context of the entire publication. So, for example, a seemingly defamatory headline might in fact not be if the rest of the story puts it in its true context.
Of Fact means just that, opinions are fine. But be careful not to frame a factual allegation as an opinion; “In my opinion, he’s a crook” is still a statement of fact.
One safeguard is that “mere vulgar abuse” can’t form a cause of action; so feel free to be as gratuitously insulting as you want.
Person doesn’t just include humans. Why non human animals aren’t regarded as persons by the law, but corporations are, is a subject for another day (and one I welcome any opportunity to vent about) but there we are. Companies can’t claim hurt feelings of course, but they can claim for material loss.
You don’t have to name the person. It can be enough if the public, or a section of the public, would know who you were referring to.
Also, be careful when using names in fiction; you may accidentally give the villain of your work a real person’s name; and then they could sue. That happens quite a bit with fictional companies; so maybe do a bit of Googling first. The traditional advice to authors was to always say the bad guys were bad in bed so no-one would be tempted to say “That’s clearly meant to be me!’.
You can defame people by reference to a group but not if it’s a large group. So, “Such and such legal firm are crooks!” could cause problems; “All lawyers are crooks” is fine.
Right minded is judged by the supposed standards of the day. Saying someone is gay or promiscuous is no longer defamatory for example, because no right minded person should care.
The allegation must be taken with regard to the subject though. Saying you saw someone eat a bacon sandwich wouldn’t generally be defamatory but it could be if the person was an outspoken vegan.
One area where this is relevant to activists might be an accusation that someone was a police informer. That could cause their peer group and friends to “shun and avoid them” (a traditional test for defamation) but it wouldn’t be defamatory because “right minded” people are deemed to support law and order.
Think less of them refers to the fact that defamation is about reputation, not character.
If someone is already held in low regard, they might not be able to bring a claim if the untrue statement couldn’t make people’s opinion of them any worse.
The audience also matters. If the only people who became aware of the statement wouldn’t believe it anyway, then it’s probably not defamatory.
Categories of Defamation
Defamation was traditionally separated into libel, slander, and malicious falsehood.
Libel was where there was a ‘permanence’ to the statement, usually meaning it was in writing, whereas slander concerned more transient matters. That distinction is breaking down a bit in the digital age; with the courts regarding videos as libel and social media comments as slander.
However, now that there’s a requirement to show actual serious loss in all forms of defamation, the distinction is less relevant. Previously, libel was actionable per se, even when there was no loss.
Malicious falsehood is just a parallel form of defamation; the history of which is probably only of concern to lawyers. It is the cause of action companies often use though; and it has a slight practical significance in that, with malicious falsehood, the Claimant has the burden of proving the statement is false.
The principal defences to a defamation claim are: Truth; Honest Opinion, Publication on a matter of public interest, Operators of Websites, Peer reviewed statements in scientific or academic journals, and Reports protected by privilege. We can look at each of these briefly in turn.
Truth - This seems fairly self explanatory. If something is true, then it can’t be a cause of action and, so long as the main allegations are true, it doesn't matter if you get a few details wrong if they don’t really add anything. Remember though, in libel or slander, it’s for you to prove that it’s true.
You also have to be careful about exactly what you’re saying. “Everyone says Joe Smith is an animal abuser” might be literally true but the underlying allegation is about the abuse and that’s the bit that you’d have to prove. And, contrary to what you see on TV, adding “allegedly...” doesn’t get you off the hook.
Also, beware when a statement could have multiple meanings, some of them defamatory and others not. In libel and slander cases, courts apply a ‘single meaning’ test. That is, they ask how most people would interpret the meaning, regardless of how the publisher meant it. One of the differences with malicious falsehood is courts allow statements to have multiple meanings. So, if you can point to a non defamatory interpretation, you’re in the clear.
Honest Opinion - To raise this defence, you need to satisfy a three part test. The statement has to be an opinion, not an assertion of fact; you need to refer to the facts that caused you to form that opinion; although that only has to be in general terms, you don’t need chapter and verse; and the opinion has to be one that an honest person could come to if they knew the same facts. It doesn’t matter if someone else might have come to a different conclusion.
The opinion has to be genuinely yours, though. The defence fails if you don’t actually think that; even if someone else reasonably could.
Publication on a matter of public interest - This is perhaps the most useful defence for activists because it protects you not just in relation to opinion, but also when you make an assertion of fact.
To qualify, the statement must have been made in relation to a matter of public interest; and you must have reasonably believed it was in the public interest to have made the statement.
The courts look at all the circumstances and context when considering whether you were reasonable; and the reasonableness of your belief is assessed by an objective standard; but the law gives wide scope to what may be reasonable. Basically, courts regard just about any action as reasonable unless no reasonable person would have done it; and it doesn’t matter if most people wouldn’t have, so long as someone else might have.
Of particular relevance to activism is that, if you’re commenting on legal proceeds that you’re a party to, you can pretty much say what you want without even considering whether it might be true; and courts are expressly forbidden from taking that into account when deciding if it was reasonable.
The courts are also slow to interfere with editorial decisions about what is in the public interest.
Operators of websites - The details of this defence are beyond the scope of this post but at its simplest: you’re not liable for what someone else posted on your site unless you’d been told about it and did nothing.
Peer reviewed statements - This protects both authors of journal articles, and anyone who quotes them.
To qualify, the statement must relate to a matter of scientific or academic interest; and have been reviewed by either the editor or one or more experts on the subject.
Reports protected by privilege - So long as your report is a “fair and accurate” representation of what was said, you can refer to anything that arose in any legislature, court, or tribunal anywhere in the world.
Of possible utility to activists, this also applies to reports about any “international conference”.
The requirement for serious harm
A major recent change in defamation laws is that now Claimants must show that they have suffered serious harm; and where that’s a commercial organisation, harm means serious financial loss; or at least the real likelihood of that happening.
Also, courts are a lot more willing to prevent a claim from going forward when the number of people who became aware of the statement was small; or any audience wouldn’t have been that interested anyway.
As one judge put it: “In the old days we provided the pitch and the referee and let the parties play on it any game they wanted. Those days are gone.”.
So, the mere fact someone has a good defamation case doesn’t mean the court will allow it to proceed if at the end of the day no one really cares.
Time limits for defamation actions
If someone wants to sue for defamation they must bring the claim within twelve months of the statement being made; and time starts running from the first time it was made; the clock doesn’t restart just because the statement is repeated.
So, that’s defamation in a nutshell. In a future post, we can look at some of the procedural aspects, should anyone actually bring a claim. Hopefully however, with the above, you’ll feel comfortable fending off any attempts to silence or intimidate you.
If you’re unsure how to respond to a groundless threat of defamation proceedings, just copy what defamation lawyers do and say “We refer you to the reply in Arkell -v- Pressdram”.
That was a case in which someone threatened defamation proceedings against a magazine, and said the amount of damages sought would depend on the magazine’s response.
The magazine’s response was “F**k off”.