False allegations published online can affect professional relationships, customer confidence and an individual’s reputation. For those targeted, the immediate concern is often how to stop the material spreading and correct the impression it creates.
Defamation law in England and Wales provides remedies for qualifying publications, but not every negative review or offensive comment is actionable. A proportionate response begins with assessing the words, their audience and their impact before deciding whether removal requests, negotiation or court proceedings are appropriate.
What Is Defamation? Libel and Slander Explained
Defamation concerns statements published to someone other than the claimant that damage the claimant’s reputation. Defamation is an umbrella term and covers both libel and slander. Libel generally involves a lasting form, such as written reviews, social media posts and website articles; slander generally concerns spoken words or gestures.
The distinction affects the legal requirements. Slander generally requires proof of specific financial loss unless an established exception applies. However, neither the classification as libel nor the seriousness of an accusation removes the need to satisfy the statutory serious harm test.
Under the Defamation Act 2013, publication must have caused, or be likely to cause, serious reputational harm. For a body trading for profit, serious harm requires actual or likely serious financial loss. Personal distress alone does not establish this reputational threshold.
When Can Online Reviews or Allegations Be Defamatory?
A review or allegation may support a claim if it conveys a defamatory meaning, identifies the claimant, reaches a third party and meets the serious harm threshold. Identification does not require a name if readers can recognise the person or business from the context.
The court determines the meaning an ordinary reasonable reader would take from the publication as a whole, rather than adopting whichever interpretation either party prefers. Context matters: an allegation of dishonesty is different from an expression of dissatisfaction with a service.
Defences must also be assessed. Truth protects substantially true imputations; honest opinion has statutory requirements concerning the opinion and its basis. Publication on a matter of public interest may also be raised as a defence where the relevant requirements are met. Privilege can also protect certain publications. Negative criticism is not automatically unlawful.
What Evidence Is Needed for a Defamation Claim?
Evidence should establish the precise publication, who could identify the claimant, who received it and its reputational consequences. A screenshot is useful, but the surrounding context and evidence of impact may be equally important.
Preserve, where available:
- The complete post or review, its URL and publication date;
- The account details, surrounding thread and subsequent edits;
- Visible views, shares, comments and other evidence of readership;
- Messages showing how customers, colleagues or others understood it;
- Evidence of lost work, cancelled contracts or other relevant consequences;
- Documents addressing the allegation and any likely defence.
The Media and Communications Claims Protocol requires a claimant to explain the publication, alleged meaning and serious harm. Businesses should also identify evidence linking the publication to actual or likely serious financial loss.
How Should You Respond to Harmful Online Content?
Preserve the evidence before seeking removal, then identify the response most likely to address the harm. Platform reporting, a request to the author and formal legal correspondence serve different purposes; none guarantees that content will disappear.
A complaint should identify the particular words and explain the problem, rather than simply asserting that a review is unfair. Anonymous accounts, overseas publishers and disputed facts may require additional investigation before a viable legal route can be identified.
Public replies should be measured and avoid repeating the accusation unnecessarily or disclosing confidential information. Threats, persistent harassment or publication of private information may raise separate legal issues requiring assessment alongside, rather than solely through, defamation law.
When Might Court Proceedings Be Appropriate?
Court action may merit consideration where a substantial allegation remains unresolved, and the evidence supports the legal requirements. Before issuing proceedings, the claimant should assess the likely defence(s), the outcome sought and whether litigation would address the harm more effectively than a negotiated correction or removal.
A practical assessment should also consider the time involved, potential costs exposure and whether further publicity could undermine the intended result. The strength of feeling about a publication should not replace an assessment of the evidence. A clear objective helps keep the proposed response proportionate.
Can You Seek Damages, Removal or a Correction?
A successful defamation claim may result in damages and, where appropriate, orders addressing publication. The remedy depends on the case; bringing a claim does not automatically secure compensation, removal or an apology.
Following judgment for the claimant, section 12 of the Defamation Act 2013 permits an order requiring publication of a summary of the judgment. The wording of the summary and place of its publication are for the parties to agree. Section 13 provides the court with powers to order the operator of a website to remove the statement or any person who is not the author, editor of publisher to stop distributing, selling or exhibiting the statement.
A negotiated resolution may instead secure a correction, apology, removal and undertakings against repetition. Those agreed outcomes should be distinguished from remedies available after trial. Litigation costs, further publicity and the publisher’s ability to comply should form part of the assessment.
Resolving Defamation Disputes Without Court Proceedings
Pre-action correspondence, negotiation and mediation can resolve disputes without a trial. The pre-action protocol encourages early exchange of information and proportionate settlement discussions, allowing both sides to understand the claim and any defence(s).
A letter of claim should identify the words, alleged meaning, inaccuracies, serious harm and remedies sought. Publishers may also consider the statutory offer of amends procedure under the Defamation Act 1996, which enables a defendant to formally admit liability for defamatory publication, if necessary and can involve a correction, apology, compensation and costs. Its timing and consequences require careful advice.
Any settlement should identify the publications covered, the wording and prominence of corrections, deadlines for removal and how future complaints will be handled. Where an undertaking against repetition is sought, its scope should be clear. Recording the agreement carefully can help reduce disagreements about whether the resolution has been implemented.
How Long Do You Have to Bring a Defamation Claim?
The usual limitation period is one year from the date of the cause of action, normally publication. Leaving a statement online does not necessarily create a fresh deadline every day, and correspondence or platform complaints should not be assumed to stop time running.
The courts tend to treat the time limit very strictly; however, they do have discretion to disapply the one year limitation period in specific circumstances. The court will consider matters including delay, prejudice and evidence. An extension should never be assumed.
Protecting Your Reputation and How We Can Help
A consistent complaints process, retained evidence and a designated person handling responses can support a measured approach to future incidents. The objective should be to address unlawful harm without treating every unfavourable comment as a legal dispute.
Herrington Carmichael’s Dispute Resolution team can assess the publication, potential defences and proportionate options for resolution. If you or your business is affected by defamation or reputational damage, please contact us to discuss the options available.
