Although it is accepted in a democratic society that individuals have a right to express their own views, this very right to freedom of expression can be abused and used to injure the reputation of others. This is why we have the Defamation Act 1996, in addition to the European Convention on Human Rights and various common law principles which attempt to define where freedom of expression ends and defamation begins under English law.
Defamation is a false accusation or a malicious misrepresentation of someone’s words or actions. The Defamation Act 1996 and case law principles exist to protect a person or an organisation’s reputation from harm.
In England and Wales, a defamatory statement comes in two forms: a permanent statement called libel which is written or recorded in some way and a non-permanent statement called slander, usually in the form of unrecorded speech or gestures.
The Defamation Act 1996 seeks to balance the principles of freedom of expression and public interest with the right to remedy damage to reputation caused by defamatory statements. The defence of fair comment for example, allows for the expression of a genuinely held opinion on a subject of public interest provided the statement was intended as an expression of opinion and was made in relation to facts which the person making the statement must be able to prove.
Under section 2 of the Defamation Act 1996 a person who has published a defamatory statement can make an ‘offer of amends’ to correct the statement, publish an apology and pay damages to the injured party. This in itself can be used as a defence to defamation proceedings in certain circumstances. The Defamation Act 1996 therefore encourages parties to attempt settlement before commencing court proceedings.