Secrets, lies and the complex world of defamation claims

Claims of defamation can, and should, be the last line of defence against reputationally-damaging comments, but are they always worth it? Nick Murrills and Zara Larmour discuss why it pays to be cautious.

For fans of celebrity scandals, this has been an eventful year. Whether it’s actors Johnny Depp and Amber Heard baring the details of their tumultuous relationship on YouTube, or footballers’ wives arguing over who leaked what to the tabloid press, the public struggles of the rich and famous have supplied pub-goers with enough conjecture and gossip to fuel their conversations for weeks to come.

Even those who staunchly avoid tabloid drama cannot deny that such cases can, and often do, provide useful lessons for businesses, particularly when it comes to managing, and defending, one’s reputation. We often say that it’s not just celebrities that need reputation management – something that is increasingly vital for businesses to understand as the power and reach of social media continues to grow.

Defamation claims can provide a useful last line of defence in a business’s arsenal of reputation management tools. By forcing public acknowledgement and redress of false and damaging claims, an individual can stem the flow of misinformation and deter future detractors from attempting the same thing. Without proactive management, however, the risks can quickly outweigh the benefits.

Claims don’t always play out well

Historically, the UK has been seen as an ideal location for defamation claims, with processes that lean more towards favouring the claimant. The Defamation Act 2013, however, has gone some way towards changing this, not least because it established a need for the claimant to prove that defamatory comments had caused, or were likely to cause, serious harm to their reputation.

In most cases, parties are strongly encouraged to reach an early settlement via alternative dispute resolution methods, such as mediation or arbitration, before taking the matter to Court – and with good reason. Once a trial begins, all evidence is examined at great length and detail, with once private information now publicly available. Arron Banks’s claim against journalist Carole Cadwalladr following her TED talk, for example, made numerous details about his professional and private life accessible to the public, including his business interests, messages, and political activity.

Potentially harmful comments or allegations can even gain greater traction and credence when taken to Court and made available for public scrutiny. As such, reputational damage can be magnified even if the claims are false, but particularly if subsequent revelations prove them to be true. Furthermore, the very act of launching a claim could be detrimental to a business’s reputation, particularly if it’s deemed excessive or unreasonable. ‘Goliath vs David’ cases can end in ‘Goliath’ becoming a figure of ridicule – even if they are successful. Take Hugo Boss, which became the subject of much derision and scorn after comedian Joe Lycett changed his name to that of the company following their ‘cease-and-desist’ letters to small businesses with ‘boss’ in their name.

Preparing for a case

Defamation claims should always be a last resort once all other methods have been exhausted. With high costs to relatively low damages, it is not always worth involving the courts and could cause further damage if not properly considered and prepared.

In a recent blog post, for example, our colleague Rory Lynch examined the ‘Wagatha Christie’ case between Coleen Rooney and Rebekah Vardy, who ultimately lost. In addition to mis-placing vital evidence, Vardy also failed to consider the various weak points of her story, which were inevitably found and exploited by lawyers trained in doing so. “Litigants should be wary of using the High Court as a balm if they are not entirely sure that the case is water-tight,” Rory said. “We can only assume that Vardy was convinced that she had been unfairly and unjustly defamed.”

Before making the other party aware of your intentions through an initial Letter of Claim, therefore, you need to first establish your position and its merits, ideally in conjunction with legal advice. This research will focus mainly on proving that “serious harm” has been caused because of the publication in question. At this point, it is better to focus on demonstrating serious harm than falsehood, largely because the onus is on the defendant to prove that the claims are true, should they choose to use this as a defence.

For businesses making claims, “serious harm” can only be demonstrated through significant financial losses. For individuals, the definition is more flexible. In Aslani v Sobierakjska, for example, a plastic surgeon based in Marbella was successful in his claim against a social media influencer because he provided evidence that her claims of botched surgery had resulted in a reduction in bookings, as well as six cancellations for which the influencer’s claims were cited as a direct reason. In this case, “serious harm” translated as a financial impact on the surgeon’s business, but as an individual, he could also have demonstrated the impact such allegations had on his reputation within the medical community.

You can also demonstrate the potential for serious harm, however, by looking at the reach of the defamatory comments. Social media has made this increasingly relevant, by allowing both true and false stories to circulate the globe and reach millions of people in a matter of minutes. Consider carefully where the comments are published, how easy they are to share, and the likely number of people that will see them. Remember, though, that it is not always the size of the audience that matters in proving potential serious harm, but the authority or influence that audience may have in the claimant’s sector.

Alternative options to defamation claims

The huge costs inherent in defamation claims can be mitigated to some extent by insurance policies, but this is often not enough to make them a financially viable solution.

For this reason, a knee-jerk response to defamatory comments is never advisable, and you should always seek legal advice as soon as you are aware of such comments. It may be that damage can be mitigated by developing a comprehensive communications strategy, in conjunction with PR specialists, that provides an open and transparent means of communication to address concerns. We often advise clients to consider this as part of a more general risk management strategy, with pre-approved short, medium, and long statements that address many different possibilities (such as safety incidents). These should be adaptable for use across interviews, social media, website notifications or newsletters.

In cases where publishers or media outlets approach you regarding a forthcoming story, it is vital that you seek professional advice and engage with them as soon as it is sensible to do so. All too often we have seen individuals or businesses refuse to cooperate with the media, thereby denying themselves the opportunity to soften any potentially damaging claims and provide their side of the story.

Alternative options aren’t just available for traditional media. Although sites like Twitter are particularly concerning for businesses – with many believing that the anonymity it provides leaves them with little recourse – there are steps you can take to reduce the reputational damage of defamatory content from an unknown author.

In accordance with the Defamation (Operators of Websites) Regulations 2013, your legal team can send a ‘take-down’ notice to the website operator, which will ask them to remove the defamatory material. Operators can be social media platforms like Twitter or Instagram, but they can also extend to Google if the post is hosted on its own web domain.

Once a ‘take-down notice’ has been received, the operator has 48 hours to investigate and respond. This should lead to either the identification of the culprit or the removal of the material.

If you are faced with defamatory comments, your priority should always be to remove, reduce or mitigate the risks to your reputation through a comprehensive and well-communicated crisis management strategy – one that prioritises transparent and proactive engagement with stakeholders over the pursuit of naysayers. Should a defamation claim become necessary to protect your hard-won reputation, always seek legal advice before launching proceedings, otherwise it could be your competitors who have the last laugh.