A brief overview of defamation law for trade unions
England is the libel capital of the world. Where once only the rich could sue to protect their reputations, now anyone can. And trade unions are not immune.
In a way they are obvious defendants because of their political nature and rights-based culture. But they should be wary of stumbling into defamation actions without fully understanding the financial consequences, especially since the advent of defamation no-win no-fee cases in 1998.
Thompsons has handled several such cases on behalf of unions and continues to do so with alarming regularity. We cannot publish the details of these because any repetition of a defamatory statement creates a new “cause-of-action” for the claimant.
To help unions in assessing potential actions, Victoria Phillips, Head of the Employment Rights Units, looks at this complex area of law and answers some frequently asked questions.
What is defamation law?
Defamation law protects a person's reputation from an unjustified attack.
How is a defamatory attack carried out?
Attacks are usually conveyed by words, either written or spoken, but they can also include photographs, cartoons, statues, cinema, television, signs, gestures, and even hissing.
Who can make a claim?
“Individuals” can sue, but this is broadly defined and includes people, companies, firms, and charities. Government bodies cannot sue, but individuals within them can.
Who can be sued?
Anyone involved in the publication of the defamatory attack can be sued. Trade unions can be defendants directly, but because there are restrictions in the level of damages that can be claimed from them, claimants usually issue proceedings against their officers, along with authors, editors and publishers of defamatory allegations.
libel or slander?
Libel is a defamatory allegation made in a permanent form, such as in a union newsletter. Slander is an allegation in a transitory form, usually the spoken word.
What must the claimant prove?
In a libel claim the claimant only needs to prove that the offending allegation:
• defames them
• would be understood to refer to them by at least one other person, and
• has been published to a third party.
In most slander claims, the claimant must also prove that they have suffered a loss arising from the defamation that can be quantifiable in monetary terms.
What is defamatory?
An allegation is defamatory if it does any of the following:
• lowers the claimant in the estimation of right-thinking members of society generally
• disparages the claimant in their business, trade, office or profession
• exposes the claimant to hatred, ridicule or contempt, or
• causes the claimant to be shunned or avoided.
The courts decide whether something is defamatory on the basis of what an average reasonable person would view the allegation to mean.
It is not usually too difficult to decide whether offending allegations are defamatory and courts will apply ordinary meanings to words. They will also read between the lines to look at what is being hinted at, and they will apply meanings that only a few readers could attribute to words.
It does not matter if there was no intention to defame someone.
How can claimants establish an allegation referred to them?
Even if a claimant is not named, and only one person can identify them from the allegation, that is enough to establish identification. It is irrelevant whether there was intention to identify someone. There have even been cases where the existence of the claimant was not known to the defendant before publication.
What is sufficient publication of the defamatory allegation?
The claimant need only prove that the allegation was published to one third party to have a claim.
What about defences?
There are three main defences of justification / truth; fair comment; and privilege. These are far harder to prove than the claim itself.
What is justification / truth?
Justification / truth is where the defendant can prove that the “sting” of the allegation is true. The “sting” is the substance of the allegation, not every fact alleged. It is a complete defence, and the most ideal due to its simplicity. But it is important to realise that the courts presume that an allegation is false until proven otherwise by the defendant.
What is fair comment?
Fair comment is the expression of an opinion based upon true facts made in good faith without malice on a matter of public interest. The facts upon which the opinion is based must be proved to be true. Comment is still protected even if extreme, as long as it is honest. “Malice” is awareness of or recklessness as to the untruth of the statement.
What is privilege?
Privilege applies to specific circumstances where it is in the public interest to permit greater freedom of speech. Two types of privilege exist – absolute and qualified.
Proof of malice defeats the defence of qualified privilege, but it has no impact upon absolute privilege. Malice in the context of qualified privilege is the same as fair comment (above), but unlike fair comment its definition also includes an improper motive in making a statement that is believed to be true. Examples of improper motives include spite, revenge or personal gain.
Absolute privilege relates to circumstances such as fair, accurate and contemporaneous reports of court proceedings and is unlikely to be relevant to trade unions.
Qualified privilege applies to a host of situations, but the most relevant is when a trade union is informing its members of something where it has a duty (legal, moral or social) or interest in doing so and their members have a duty or interest in receiving that information.
For instance, there may be a duty-interest defence for information about how union funds and therefore members’ contributions were spent by a union, even if this involved publishing a defamatory statement. Whether a duty-interest situation exists is difficult to prove and not all information published to members is protected in this way.
Overall, trade unions must be cautious about trying to rely upon qualified privilege as the courts do not apply simple mechanical rules but instead attempt to strike a balance between the protection of reputations and freedom of speech based upon unsystematic and often unconnected case law. The outcome of such an approach is not always predictable.
How does the cost of a defamation action compare to the damages award?
Most damages awards are around £10,000 or less. It is rare for an award to exceed £100,000 and judges cap the awards that a jury can give.
In contrast, legal costs are nearly always for at least £100,000 and some are now for more than £1,000,000, particularly if the winner is using a no-win, no-fee agreement.
Chilling statistics for unions and their members, who ultimately fund actions brought against their unions.