Whilst goodwill of a business is often difficult to value, it is clear that goodwill is one of the most important aspects of any business. Much in the same way that individuals desire to protect their personal reputation, the law provides that businesses are able to pursue claims against individuals or other businesses that seek to damage their goodwill.
The common law governing defamation has been in place for hundreds of years yet many business owners mistakenly believe that this law is in place purely to protect the reputations of politicians, celebrities, footballers and those in the public eye. On the contrary, the law applies equally to businesses and with the ever increasing use of unmonitored online review sites, the potential for damage to businesses caused by defamatory comments is greater than ever.
Who can make or bring a claim for defamation?
Claims can be made by individuals, partnerships, limited companies, trade unions and some charities. Equally claims can be made against them.
What is defamation?
Defamation is a publication (either written or verbal) which would cause ‘right-thinking’ others to think worse of a business (or individual), or cause the business or individual to be avoided or ridiculed.
What is the difference between Libel and Slander?
Defamation is the collective term for libel and slander. Where the defamation is in writing or some other permanent form it is libel. In this day and age, the vast majority of claims brought by businesses are libel claims arising from unjustified critical comments made online. Where the defamatory comments are spoken or in some other temporary form it is slander.
In any event, it is necessary to establish “serious harm”, which in the case of for-profit bodies is restricted to serious financial loss.
What is a publication?
A publication can be any means of communication with someone other than the business or individual being defamed. It includes:
- Spoken words
- Posting a comment on Twitter, Facebook or another internet site
- Writing a letter, email or other document such as a book or newspaper article
The publication does not have to name the business being defamed, the only requirement being that the business could be identified by people acquainted with the business in question.
What remedies can I seek from another business or individual that has defamed me?
Your aim will be the vindication of the damage to the reputation of the business. This may be achieved through the award of monetary compensation to compensate for the losses suffered and/or through the immediate public retraction of the statement with an apology and an undertaking from the maker of the defamatory publication not to repeat the statement.
What is the time limit for bringing a defamation claim?
In general, there is a time limit of 1 year from the date of the publication to bring a claim in court.
Are there any defences to being accused of defamation?
Yes. The 3 most common defences are:
- Justification – that the publication was true or mostly true.
- Fair comment - that the publication is an honestly held opinion which must be based on facts which are true or mostly true. This defence does not apply to assertions of facts dressed up as opinion.
- Public interest- for the defence to succeed, the publication (or part of it) must relate to a matter of public interest and the defendant must reasonably believe that the publication of the statement is in the public interest.
Someone abroad has made a defamatory statement about me, can I sue in England and Wales?
If the publication has been brought to the attention of a sufficient number of people in England and Wales (which is easily achieved if published online), then you can bring the claim here.
I live abroad, can I sue for defamation in England or Wales?
This is possible provided that your opponent lives in or the publication occurred in England or Wales and has been communicated to a sufficient number of readers in the jurisdiction.
If you believe that your business has been made the subject of defamatory comments, it is crucial that steps are taken as soon as possible or else the chance to bring a claim may be lost.