Defamation

Defamation law aims to strike a balance between the right to freedom of expression and the protection of reputation.

As an international publisher with many journals published out of the UK, we are particularly mindful of UK defamation law, which is the basis for this note.

What is defamation?

The term “defamation” covers both libel or slander.  Libel relates to statements made with a degree of permanence, such as written statements, whereas slander relates to transient statements, such as spoken statements. In the publishing industry, most defamation issues relate to libel.

There is no single, definitive judicial interpretation of what constitutes a defamatory statement. Generally speaking, a defamatory statement is one which makes people think worse of someone and which causes the subject to be shunned or avoided, lowers the subject in the estimation of right-minded people, and/or implies a lack of qualification, integrity, knowledge, skill, capacity, judgment or efficiency to conduct business.  It could, for example, include allegations of dishonesty, insolvency or sharp practices.

A statement is libelous of someone if it refers to them, even if it does not actually name them.  As such, removing or changing the name of the person may not necessarily remove the libel risk, if the surrounding text gives enough information for the person to be identifiable.

Who can bring a claim?

Any individual, company or other legal entity whose reputation has been damaged can potentially bring a claim for libel.  However, it is not generally possible for a deceased person or their estate to bring a libel claim.

Who could be liable?

In principle, any of the “primary publishers” could be liable under UK law – the author, the editor and the publisher.  If only for this reason, it is important that our editors are aware of, and have at least a basic understanding of, defamation law.  Secondary publishers, such as printers and book sellers, may only be sued if it is not “reasonably practicable” for the claimant to sue a primary publisher.

What are the remedies?

The key remedies potentially available for defamation under UK law are: (i) damages – i.e. money; (ii) an injunction prohibiting the defendant from repeating the libel; (iii) publication by the defendant of a summary of the court’s judgment; (iv) an order to remove the defamatory statement; and (v) recovery of legal costs.

What are the defenses?

The defenses under UK law include:

• Truth: it is a defense if it can be proven (with evidence) that the defamatory allegations are substantially true. The burden rests on the defendant to prove that the allegations are true, rather than on the claimant to show that the allegations are untrue.
• Honest opinion: this defense protects a statement of opinion (not fact) which an honest person could have held on the basis of any fact which existed at the time of publication. The statement must indicate, in general or specific terms, the basis of the opinion.  The defense can be defeated if the claimant can show that the defendant did not hold that opinion (or, where the defendant was not the author of the statement, that the defendant knew or ought to have known that the author did not hold the opinion).
• Publication on a matter of public Interest: this protects a statement on a matter of public interest where the defendant reasonably believed that publication was in the public interest. In assessing whether this defense is made out, the court would take into account all the circumstances of the case, which could include the steps taken to verify the truth of the allegation, the nature of the sources and any reported response or comment from the claimant (essentially, whether publication amounted to ‘responsible journalism’).
• Absolute/qualified privilege: this protects certain occasions and proceedings and their reporting. Absolute privilege, for example, protects fair and accurate contemporaneous reports of court and other judicial proceedings.  Qualified privilege can be defeated by ‘malice’ (in the legal sense), namely a dominant improper motive on the part of the defendant which may be inferred if the defendant knew the statement was false or was reckless as to the truth of it.

It is important to note that the defenses to defamation are complex in terms of their interpretation, application and the evidence required.  You should consult with the Managing Editor for your journal if any potential libel issues arise.

What should I do next?

It is important that editors should be aware of libel risks when reviewing content for publication.  Often the risks can be reduced significantly through careful language sub-editing, in consultation with the author, at the submission stage.  Journal editors should also make referees aware of the potential for libel in a manuscript review report.

If you have not already migrated to online peer review management via ScholarOne Manuscripts or Editorial Manager, referee reports and peer-review correspondence (including emails) should be held in a secure, confidential archive. If you use ScholarOne Manuscripts or Editorial Manager, the system stores review reports and associated correspondence automatically, so no further action is required. If you would like to move to a peer review system to manage peer review correspondence and documentation, please contact your Managing Editor.

If you have any concerns about potentially libelous content, or receive a legal complaint, you should contact the Managing Editor for your journal as soon as possible.