In advance of the new Digital PR course from PM Forum, I asked solicitors at Royds LLP to provide some advice on what to do if someone writes something that is defamatory about you or your firm. Stewart Wilkinson, head of litigation at Royds LLP and trainee solicitor Rachel Salter kindly provided the following guest blog.
What is Defamation?
Defamation occurs when material is communicated to a third party which calls into question the reputation of its victim (whether that be an individual, company or firm) and undermines that reputation in the eyes of right thinking members of society generally or which exposes the victim to hatred, contempt or ridicule.
Although it is not necessary to show that a statement is false, there is a complete defence of justification if the defendant is able to demonstrate its truth.
What to do if it happens to your firm?
If you find that defamatory material about your business has been published online, you should immediately contact the author (if known) to explain why you consider the material to be defamatory and to secure its removal.
You should also notify the website operator, regardless of whether you can identify the individual author. This is because website operators that facilitate the publishing of defamatory material may be held responsible for it, even if they have not exerted any editorial control over it. Such facilitators are only able to rely on a defence of innocent dissemination if they remove defamatory material as soon as they are put on notice of its existence.
When should I instruct a lawyer?
If informal discussions with the publisher do not result in the material being removed, or if your business reputation suffers or will potentially suffer harm as a result of defamatory material, you should consult a solicitor.
If you have prior warning that defamatory material will be published, your lawyer can seek an injunction to prevent publication in the first place. Even where the material has already been published, it is standard practice to seek an injunction to prevent further publication, in addition to damages.
The assessment of damages will depend on the facts of the case and will be awarded principally as compensation for the harm caused to the victim’s reputation. Where the defamation relates to business activities, an award may comprise general loss of business profits or specific loss arising from lost contracts.
In serious cases, damages can also take the form of aggravated and exemplary damages which compensate for disgraceful conduct and penalise the defendant.
The court cannot force a defendant to make a public apology but is open to the parties to agree that an apology should be published as part of an out of court settlement.
The Defamation Act 1996 prescribes a fast-track procedure where the courts can grant summary relief and assess damages up to £10,000. In summary relief proceedings, the court can order the defendant to publish a suitable correction or apology to be agreed between the parties. In the event that the parties cannot agree, the court can direct the defendant to publish a summary of the court judgment.
To avoid being defamed online, you should:
1. Make it easy for customers to complain directly to you and set up a procedure to respond to complaints promptly.
2. Use services like Google alerts which allow you to monitor the internet for content written about your firm
3. If you find that defamatory material has been published about your business, act quickly to notify website operators and seek legal advice.
4. Be discreet and avoid repeatedly checking a website which you know contains defamatory material; the more the page is accessed, the higher it will rank in search engines
© Royds LLP