What farmers should know about defamation law
Negative pub talk about an individual or business could lead to a defamation claim © Cofiant Images/Alamy Stock Photo Most people’s knowledge of defamation is gleaned through celebrity libel trials, such as those involving film stars Johnny Depp and Amber Heard or footballers’ wives Rebekah Vardy and Coleen Rooney.
Yet an untrue statement about a farming business, or a person, could have serious reputational and financial consequences, so it is a relevant topic both for those making such a statement and those on the receiving end.
Robert James, a partner with law firm Thrings, outlines some of the guiding principles of defamation law to be aware of.
See also: Advice on farm staff issues with drug and alcohol use
What is defamation?
Defamation is an umbrella term which covers both libel and slander.
Libel relates to the publication of a statement in permanent form, such as in writing, which might include media coverage, a letter to the local council, or statements made on social media.
Slander involves making defamatory statements in spoken form.
There are certain “ingredients” that are needed before someone can make a claim for defamation. These are:
- A statement must have been made to a third party (either in written or spoken form)
- The claimant would need to show that the statement was untrue and that it lowers their estimation in the eyes of the public
- The claimant needs to be identifiable as the victim.
Whether a person or business has been identified can trip people up, with some mistakenly believing that as long as they have not named an individual or a business, they have not defamed them.
However, this is not the case – if people can work out who the words refer to, they can still be defamatory.
The final ingredient in a defamation claim – and this has only been the case since the introduction of the 2013 Defamation Act – is that a statement must have caused “serious harm”.
“This must be financial harm if you are a business, although it does not need to be financial for an individual,” says Robert.
“This is a really important filter. Before 2013, if something was said that was untrue then on the face of it you had a defamation claim. Now courts are saying ‘don’t bother us with minor stuff’.”
How does defamation tend to affect farmers?
The good news is that defamation court cases involving farmers or farming businesses are relatively rare.
However, parish council or public planning meetings are instances where farmers might find themselves the victim of defamation, if claims and counterclaims are flung around as emotions run high.
“It is not unusual as a solicitor to get a call saying ‘this happened at the parish council meeting and councillor X said this and then councillor Y said that’,” says Robert.
Social media is another problem area because of the ease with which comments can be published.
“There is a lot more potentially defamatory material circulating as a result, and once it is out there the hare is running.
“However, you have to come back to the “serious harm” test. A farmer may not like what someone said in a post, but they will only have an actionable claim if it has caused serious harm.”
What are the defences to defamation?
There are a range of defences to a claim for defamation. These are:
- Truth The defendant needs to show that the statement they made was “substantially true”.
- Honest opinion This can be used if a defendant can demonstrate that what they said was an opinion that could have been held by an honest person based on the facts available at the time.
- Public interest This can be a defence if the statement was made on a matter of public interest, although defining public interest can be complex.
- Privilege Under what is known as absolute privilege, MPs are allowed to make statements in Parliament which are not subject to the laws of defamation. Qualified privilege is another possible defence and covers lawyers who might be writing or speaking about allegations as part of legal proceedings.
Short time to bring claims
Defamation has a very short limitation period compared with other areas of the law.
For example, a farmer has six years to bring forward a claim for breach of contract, but with defamation they have only a year to start court proceedings.
“This is something that people can miss and the time starts from the date of publication,” says Robert.
“This can be an issue when people fall out over a period of time and then think back to something which has been said previously and wonder if they can take action.”
What other considerations might there be?
Defamation proceedings are notoriously expensive and, contrary to popular belief, damages are relatively modest.
“As a victim it is not nice, and if there is serious harm then you can press the button on proceedings, but unfortunately it is going to be an expensive journey,” warns Robert.
The cost of court proceedings can often run into the hundreds of thousands of pounds.
A complication if someone has been defamed on social media is that it may not be immediately apparent who is behind a comment because their user name may bear no relation to their true identity.
In such instances, although social media platforms have certain obligations to provide information, this is not an easy process and the additional work adds to the cost of the case.
However, court proceedings may not be required, and sometimes a well-worded legal letter can bring about a satisfactory resolution.
In litigation there are certain pre-action protocols which set out the steps required before court proceedings are issued.
For defamation cases, one of these is a pre-action protocol letter setting out details of why the farmer or farming business believes they have been defamed.
The letter would also usually set out the remedies being sought by the claimant.
This might include damages, costs and an undertaking from the person who made the statement that they will not repeat it and that they will issue a correction or apology.
“I have had some clients whose main driver is to cause embarrassment to the person who they claim has defamed them [rather than the disruption and expense of going to court for damages],” says Robert.
“So if you can get an apology by agreement through initial correspondence, then fantastic.
“It is not a complete reversal of the damage but is going to be highly embarrassing for the defendant to have to publish an apology.”
Online risks: How to avoid defaming a person or business
It has become very easy to vent online about someone who has not paid their bill on time or to make claims about their actions, but it is important to be careful about what is said or posted.
It is always sensible to think about what is gained from posting – if it is just to make you feel better it might be wise to resist.
If you still feel compelled to comment, then stick to the facts, because if it is true, it is not defamatory.
This means avoiding conjecture or presenting opinions dressed up as facts.
For example, if you were to post publicly online that you were unhappy that business X has not paid your invoice, then that should be acceptable.
However, posting that someone is bankrupt or that a business is insolvent, and suggesting that people should not deal with them because they are not to be trusted, might be defamatory if the individuals or the business can show that this is not the case.
“There is a delicate balance in terms of what is and what is not actionable,” warns Robert.