The outcome of a defamation case is determined by what each side has to prove.  The claimant is required to prove certain things to establish a claim.  If these are proved, the claimant will win the claim unless the defendant can establish a defense.  Some defenses can be lost if the claimant is able to prove that the defendant acted in bad faith, commonly described as malice.

It follows that a defendant can successfully defend a claim in one of the following ways:-

• By showing that the claimant is unable to prove at least one of the things that he is required to prove; or
• By establishing at least one defense; and
• If that defense can be defeated by malice, the claimant either does not allege malice or cannot prove it.

Even if the claimant wins the claim, in certain cases, only nominal damages may be awarded i.e. 1p.  This will generally be considered to be a successful outcome for the defendant.  The possibility is considered further below.

The ability of a defendant successfully to defend obviously depends on the facts.  In particular, much will depend on the precise words that the defendant has used.  These will be referred to as “the statement”.

What the claimant must prove

The claimant must prove 3 things:-

• The statement is defamatory.
• It refers to the claimant.
• It was “published” by the defendant.

What is a defamatory statement?

A defamatory statement is one that has caused or is likely to cause serious harm to the claimant’s reputation by making right-thinking people think substantially the worse of him/her.  Most defamatory statements impute morally blameworthy conduct to the claimant.  But this is not a necessary requirement.  For example an allegation of insolvency or incompetence in a professional capacity would generally be regarded to be defamatory.

Where the claimant is a company, serious harm equates to serious financial loss.

In order to determine whether a statement is defamatory, it may first be necessary to determine its meaning.  Different people can understand a statement in different ways.  A defamatory meaning can be derived from inferences going beyond the literal meaning of the words.

Reference to the claimant

Generally the claimant will be named and the issue will not arise, but an unnamed claimant who can be identified by other means as the target of a defamatory statement will be able to sue. So too might a person who shares the same name as the intended target of the publication.

Publication

Publication means communicating the statement 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. There is no restriction on the medium in which the statement is published. It could be published in writing, electronically or, in one instance, by putting a waxwork of the claimant in the Chamber of Horrors.

There may be a number of people responsible for publication, each of whom can be sued.  For example, a person who authorizes or disseminates the publication will be equally liable as the person who makes it.

Reference to the claimant

Generally the claimant will be named and the issue will not arise, but an unnamed claimant who can be identified by other means as the target of a defamatory statement will be able to sue. So too might a person who shares the same name as the intended target of the publication.

The difference between libel and slander

Defamation is the generic term for libel and slander. Where the defamation is in writing or in some other permanent form it is a libel. Where it is spoken or in some other temporary form it is a slander. In certain slander claims it is necessary for the claimant to prove financial loss.

A claimant who proves these matters will win the case, unless the defendant can establish at least one of the available defenses.