Protecting privacy rights – Defamation

Defamation seeks to protect the individuals’ reputation from false statements which harm or may harm it. Slander and libel (more permanent forms of communication) refer to a statement publicized to a third party which has or is likely to cause serious harm to their reputation.

Defamation is a construct of the common law, built up over a series of legal cases. Defamation cases have been held to extend to social media, such as to tweets made by Katie Hopkins to food writer Jack Monroe.

Thornton v Telegraph Media Group Ltd [2011] EWHC 159 (QB) highlighted that defamation claims often cross the threshold to engage Article 8 privacy rights. In particular, the European Court of Human Rights has ruled that:

“In order for Article 8 to come into play, however, an attack on a person’s reputation must attain a certain level of seriousness and in a manner causing prejudice to personal enjoyment of the right to respect for private life…”

Claimants have to show the statement at issue is likely to cause serious harm to their reputation per s.1 Defamation Act 2013. This is typically via evidence such as circulation, subscribers and views of the statement at issue.

The defenses available to defamation are:

  1. Truth: That the statement itself was substantially true.
  2. Honest opinion: That the statement was one of opinion and that an honest person could have reasonably held that opinion.
  3. Public interest: That the matter was one which was in the public interest and the publisher of the statement reasonably believed it to be so.
  4. Privilege: This can be absolute (such as a Parliamentary statement) or qualified (e.g. job references). Qualified privilege does not protect the publisher of a statement where it was done so maliciously.

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