Defamation law: the basics

About this guide

This guide was last updated on 25 February 2025. If you have any questions or suggestions, please get in touch.

Disclaimer

This guide does not constitute, and should not be relied on, as legal advice. Specialist legal advice should be taken based upon the particular circumstances in which it is needed.

What is libel? 

Libel is defamation in lasting form, and includes any statement written, broadcast, posted online, tweeted or otherwise published. The form doesn’t matter much, what matters is what the statement conveys (its “meaning”: see below). A photograph could be a defamatory statement, for example, or a symbol, or even a gesture. Slander is spoken defamation, but anything spoken that is recorded or broadcast becomes libel.\

The basic ingredients of a libel are (i) a defamatory statement that is (ii) published to a third party.

What is defamatory? 

A statement that is defamatory is one that ‘has a tendency to’ lower a person in the estimation of others, by attributing to that person behaviour (or views) that are contrary to common, shared values of society. It can be a statement of fact or a statement of opinion, but there is a special defence in respect of statements of opinion if certain conditions are met (see below). 

To be defamatory a statement must cause, or be likely to cause, serious harm to a person’s reputation. The person can be an individual or a company, but if a company, the damage caused to its reputation must have caused or be likely to cause it serious financial harm. 

What is publication? 

Publication means communicating the statement to a third party, by any means. Publication occurs when and where the statement is read, which means for online publications, even though a statement is posted by someone in, say, India, if it is read on a device by someone in England, publication has taken place in England. If damage occurs as a result, an English court may accept jurisdiction to hear the case. 

Publication includes social media posts (X/Twitter, Facebook, Instagram, TikTok etc) and articles published in print and online.

Who can sue? 

A person or company can sue if a defamatory statement is published about them. Even if they are not named, they could still sue if an ordinary reader would know who the statement was referring to, for example because it describes a person’s position in a company or refers to facts unique to that person. 

Who can be liable? 

Anyone involved in making or causing the publication might be liable. It is not only the original author or editor of the statement who is liable, but also those who disseminate it, such as re-posters or re-tweeters. In some circumstances even hyperlinking to material may attract liability for publishing it (if in hyperlinking to it you cause people to read it). Publishing a defamatory statement makes the publisher liable for the content of that statement; it is no defence to say you were just passing on something written by someone else. 

A crucial concept in libel law is that of ‘meaning’. The law proceeds on the basis that a statement has only one meaning. It doesn’t matter what the author intended to say in a statement, or even what particular individuals understood by it, what matters is how the statement would be understood by ‘the ordinary reasonable reader’. The person who decides this question is the judge, applying some well-worn legal principles.

One such important principle is that of context. A seemingly innocent statement on its own may be rendered defamatory by its context, and vice versa, and comments made on social media should be considered in that context, so may be treated differently to comments made in a book or newspaper. The most famous example of this was when a judge decided that a tweet which read, “Why is Lord McAlpine trending? *Innocent face*” meant that Lord McAlpine was a paedophile who was guilty of sexually abusing boys living in care. 

Levels of meaning

When faced with determining the meaning of a statement, particularly where a criminal offence might be alleged, judges often fall back onto the ‘Chase’ levels of meaning (named after a case). Those are:

1. Guilt: the person has committed the offence
2. Grounds to suspect that the person has done something (blameworthy) that has invited the relevant suspicion
3. Grounds to investigate: there existed at the date of publication grounds to investigate whether the person was responsible for the alleged misconduct.

It is always a good idea to consider how far any evidence you have goes up this scale, and tailor any allegations you make accordingly. See below for tips on writing to avoid trouble.

Truth (section 2, Defamation Act 2013) 

It is a complete defence to an action for libel to prove in court that the statement – in the meaning determined by the judge – is true. This is often harder than you think it will be. Although the standard of proof is the balance of probabilities, judges are (quite properly) very cautious before making findings that people have engaged in serious wrongdoing. Running a truth defence is a cumbersome and expensive exercise and should not be undertaken lightly.

The repetition rule 

A crucial rule to understand when considering issues of meaning and truth is the ‘repetition rule’. Saying that somebody else has made a defamatory statement is treated by the court as making that same defamatory statement. Use of words like “allegedly”, or seeking to make clear that you are only reporting rumours, usually won’t allow you to defend your statement as true unless you can prove the substance of the statement. It’s not enough to prove that someone else said it. 

Honest opinion (section 3, Defamation Act 2013) 

A defamatory statement is sometimes a statement of opinion rather than a statement of fact. To be a statement of opinion, it must be obvious that the statement is a deduction, inference, criticism, remark or observation, and the basis for the opinion must be given, even in general terms. If those conditions are met, then provided that an honest person could have held the opinion on the basis of any provable fact that existed at the time, then the defence will succeed. It will also succeed if the opinion is based on facts included in a privileged publication, such as a court report, provided those facts are indicated and summarised accurately. 

Publication on a matter of public interest (section 4, Defamation Act 2013) 

It is defence for a publisher to show that the statement was on a matter of public interest and that they reasonably believed that publishing it was in the public interest, having regard to all the circumstances of the case as at the date of publication. There are three elements in this defence, each of which needs to be dealt with in turn. 

1. The statement must be on a matter of public interest. This is an objective test, which means the court has to decide for itself whether or not the statement is on a matter of public interest. 
2. The publisher must also have believed that it was in the public interest to publish the statement. This is a question of fact as to the publisher’s belief. 
3. The publisher’s belief that it was in the public interest to publish the statement must have been reasonable having regard to all the circumstances of the case at the time. This is the heart of the defence. The court will look at all aspects of the case, including the characteristics of the publisher, the resources and time available to them, the strength of the allegation being made, the evidence available to the publisher at the time of publication, and crucially the steps taken to verify the statement before it was published. An important factor will be whether the publisher sought comment from the person or organisation they were writing about prior to publication. 

For some practical tips on how to improve your chances of being able to rely on the public interest defence, see below. 

Other defences 

There are a handful of other defences available in certain situations, for example when reporting from court or Parliament, or when working from official documents. In many such cases, as long as the report is fair and accurate, the publisher will have a defence of qualified or absolute privilege. It is however important to check carefully if looking to rely on any of these rules, because they are often complex, and may be affected by other legal restrictions on publication (for example in the context of ongoing legal proceedings) or subject to the publication of a clarificatory statement if requested.

• Keep detailed notes of your research or the decision-making process you go through when deciding whether or not to publish a statement, including websites you visited and notes of conversations you had to verify your allegations, as well as any other evidence you collected (but remember, if you are sued, you may have to hand your notes and other documents over to the person/company suing you, and to the court). 
• Write carefully: think about what you’re alleging and who it might refer to. Try to stand back and look at what you are saying and how it might be interpreted by a reader. If what you have written seems like you are making negative inferences about someone or something, even if you aren’t making bald assertions, it is very likely that a judge will pick up on your inferences. 
• Write accurately: be as clear in your own mind as you can about what you are alleging and to what degree of guilt (see the ‘Chase’ levels above). 
• Look out for context that might elevate the defamatory meaning of your text, for example including someone in a rogues’ gallery might imply that they share the same degree of guilt as others mentioned in your piece. 
• Consider the relevance of anything you publish to any public interest in your story. Just because your story deals in general terms with a matter that is clearly in the public interest doesn’t mean that everything written in it will be protected. Some material may be irrelevant. 
• Avoid attributing motive, which is very hard to prove (e.g. saying someone misstated a fact is different from saying that they lied about it).
• If writing about a company, avoid identifying (even indirectly if possible) individuals unless relevant to do so.
• Contact the subjects for comment if you can, and publish their responses.
• If you can’t contact them, see if they have put their side of the story into the public domain, and include it. 
• Be as fair as you can. 
• Think before you publish, and jot down your answers to the three questions in the public interest defence in relation to anything defamatory you might be going to say in as much detail as possible: 
  1. Is this on a matter of public interest? 
  2. Do I believe that publishing each defamatory allegation is in the public interest? 
  3. Is that reasonable having regard to what I’ve done in researching and writing the story?

Anyone threatening to sue for defamation should first write a letter that complies with the relevant paragraphs of the Pre-action Protocol for Media and Communications Claims (available here). In that letter they need to set out precisely what it is you have published, what they say its meaning is, why it is false or inaccurate, and how it has caused serious harm to the claimant. 

What to do if you receive a letter of claim 

Don’t panic. Look carefully at what you published, and consider it against the letter. Doing the best you can to be fair and reasonable, try to see it from the point of view of the claimant (in order to do this you will probably have to take a deep breath and look beyond the hyperbole and bluster in the letter). Locate and keep any relevant documents, including drafts, emails, letters and so on. 

Ask yourself: 

• Does the letter provide me with information that I didn’t have previously? If so, does that change anything? 
• Do I need more information now, whether from the claimant or elsewhere?
• Have I been fair to the claimant? 
• Do I need to make any amendments or corrections? 
• Should I be taking the story down? 

Sometimes it will take some time to investigate the issues, and you may want to go back to the claimant or their lawyers for more information or clarification. In these circumstances, you should consider whether to temporarily remove the material, or you could put a notice on it so anyone reading it is clear that it contains allegations which are denied by the claimant and subject to a legal complaint. 

If, having marshalled all of the facts and understood the claimant’s case as best you can, you conclude that there is no reason for you to change or remove anything, then you should write back to the claimant and explain yourself. 

You should also respond as quickly as you can if you have got something wrong. Don’t bury your head in the sand. A quick correction and apology can significantly reduce any damages and costs payable by you. In some cases a correction is even capable of avoiding serious harm to the claimant’s reputation (and so avoiding a claim altogether). 

For a reasonably priced and accessible guide to the law on publication, consider investing in an up-to-date copy of McNae’s Essential Law for Journalists (the current edition (27th) is available for around £28).

• Good Law Project – A not-for-profit campaign group which seeks to use the law for good, has expertise in handling defamation claims, and provides legal advice at low cost and pro bono: goodlawproject.org  
• LawWorks – A charity that connects individuals with solicitors offering free legal advice and assistance to those who cannot afford to pay: lawworks.org.uk
• Advocate – A charity that connects individuals with barristers offering free legal advice and court representation to those who cannot afford to pay: weareadvocate.org.uk