defamation
n. The publication of an untrue statement about a person that tends to lower his reputation in the opinion of right-thinking members of the community (Sim v Stretch [1936] 2 ALL ER 1237 (HL)) or to make them shun or avoid him. The Defamation Act 2013 introduced a further threshold test, providing that a statement is not defamatory unless serious harm to the claimant’s reputation has been caused or is likely to occur. Defamation is usually in words, but pictures, gestures, and other acts can be defamatory. In English law, a distinction is made between defamation in permanent form (see libel) and defamation not in permanent form (see slander). This distinction is not made in Scotland. The remedies in tort for defamation are damages and injunction.

In English law, the basis of the tort is injury to reputation, so it must be proved that the statement was communicated to someone other than the person defamed. In Scottish law, defamation includes injury to the feelings of the person defamed as well as injury to reputation, so an action can be brought when a statement is communicated only to the person defamed. If the statement is not obviously defamatory, the claimant must show that it would be understood in a defamatory sense (see innuendo). It is not necessary to prove that the defendant intended to refer to the claimant. The test is whether reasonable people would think the statement referred to him, but the defendant may escape liability for unintentional defamation by making an offer of amends (see also apology). Other defences are truth (formerly known as justification), honest opinion (formerly known as, fair comment), absolute privilege, and qualified privilege. The 2013 Act also extends privilege to peer-reviewed statements in scientific or academic journals. A new statutory defence is created for operators of websites in respect of statements posted by third parties; the defence is lost if the operator fails to remove the defamatory posting after having been notified by a claimant who is unable to identify the poster sufficiently to take action against him in person.

All those involved in the publication of a defamatory statement, such as printers, publishers, and broadcasting companies, are liable and every repetition of a defamatory statement is a fresh publication, giving rise to a new cause of action. A mere distributor of a book, newspaper, etc., may have a defence of innocent dissemination if he was not the author, editor, or commercial publisher; took reasonable care in relation to the publication, and did not know and had no reason to know of its defamatory contents (Defamation Act 1996 s 1). The Defamation Act 1996 introduced a summary procedure for claims of less than £10,000 to be heard by a judge alone but did not otherwise change the rule that the jury and not the judge decides on the damages in defamation cases. The limitation period was reduced to one year. The Defamation Act 2013 now provides for trial without jury unless the court orders otherwise.

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