A public dispute over the authenticity of events in bestseller The Salt Path between the book’s author Raynor Winn and the Observer newspaper have demonstrated how easily damaged the brand of individuals and organisations alike can be.
Whilst no formal court proceedings have been announced at the time of this article’s publication, it does highlight the importance of understanding the legal landscape and acting quickly to protect your commercial reputation and trust with customers, investors and other stakeholders.
Meg Jefferies, Partner in Thrings’ Commercial Dispute Resolution team, takes a look at the basics of defamation and what businesses should do if they potentially find their reputation under fire.
What is defamation?
Defamation is a legal term for when someone makes a false statement about you or your business that causes serious harm to your reputation. It comes in two forms:
- Libel – defamation in a permanent form, such as written words, newspaper articles, social media posts, or even a recorded broadcast.
- Slander – defamation in a temporary form, typically spoken words.
There are a wide range of scenarios where defamation can arise, whether it’s a former employee posting misleading claims about your business on social media, customers making false allegations or competitors making unfounded statements about your products or services.
What do you need to prove?
Not all unpleasant comments or unfair opinions will count as defamation in the eyes of the law. The legal test, under the Defamation Act 2013, sets a relatively high bar. In order to bring a defamation claim, you’ll need to show:
- A published statement – The comment must have been published to at least one other person. This includes emails, websites, social media posts, and print publications.
- Identification – The statement must be about you or your business. Even if you’re not named explicitly, if a reasonable person can identify you or your business from the content, it may qualify.
- Serious harm – For individuals, the statement must have caused or be likely to cause serious harm to their reputation. For businesses, this generally means serious financial loss.
- Falsity – The statement must be false. If it’s true, or an honest opinion based on facts, a defence may apply.
Claimants will need to present their argument in a way that negates any perceived valid legal defence, such as truth, honest opinion, or public interest.
What should you do if you suspect defamation?
If you think your business has been defamed, acting promptly but not rashly is key. Taking early, strategic advice to understand your position and what is best for your brand is crucial. Here’s what to consider:
- Don’t panic: Your first instinct may be to respond or react – especially online. But resist the urge to fire back or escalate the issue. Instead, take screenshots or download copies of the offending content and record when and where it was published. This may be vital evidence later. Winn’s decision to seek legal advice before issuing a comprehensive response, with evidence, demonstrates the composure needed in such a high-stakes situation.
- Seek legal advice early: Time is a factor. Defamation claims usually need to be brought within one year of publication. Not every critical statement will meet the legal test and not every claim is worth pursuing so engaging with legal experts can help you assess the seriousness of the claim, your prospects of success, and whether court action is your best option.
- Consider your objectives: Not every case calls for a legal claim. You might want a public correction, a private apology, removal of the content, or financial compensation. A clear strategy from the outset can help achieve the outcome that matters most to your business.
- Explore resolution routes: Before heading to court, many defamation issues can be resolved through pre-action correspondence or alternative dispute resolution. A formal legal letter can sometimes prompt a retraction or settlement. The courts also expect parties to explore these options before issuing proceedings.
- Clear and concise communication: Reputation management isn’t just about the legal routes and those under fire should ensure they are staying in touch with key stakeholders with calm and clear communications to reassure them and to protect your business’ long-term image.
Thrings’ Commercial Dispute Resolution lawyers have an outstanding track record in achieving success in court, also offering expertise in mediation, pre-action work, settlement negotiations and arbitration to deliver commercially focused solutions to minimise disruption to your business. Contact us to find out more.
