Checklist: Addressing online defamation and protecting your digital reputation (UK)

Introduction

This checklist suggests the key steps to take when dealing with online defamation, libel and slander and provides strategies to adopt to rectify reputational damage in a digital context. It also addresses how to proactively safeguard your digital reputation. This resource is aimed at in-house lawyers, private practice lawyers and risk compliance teams within the jurisdiction of England and Wales.

The checklist addresses the following steps:

1. Regularly monitor your online presence
2. Consider, address and respond to defamatory or false statements published
3. Assess your legal position and the steps required for a defamation action in England and Wales

The checklist is presented as a list of important steps and considerations that you can tick off as they are addressed. At the end of the document there are explanatory notes, and specific notes corresponding to the relevant step in the checklist. It is written primarily for the benefit of potential claimants (although Step 2 will also be of interest to defendants).

This checklist can be used in conjunction with the following How-to guide: The legal framework for resolving disputes in England and Wales and Checklist: Considerations prior to issuing court proceedings.

Step 1 – Regularly monitor your online presence

Step 2 – Consider, address and respond to defamatory or false statements published

Step 3 – Assess your legal position and the steps required for a defamation action in England and Wales

Explanatory notes

Overview

The law of defamation protects harm to reputation for individuals and businesses caused by the publication of false defamatory statements (whether online or not). The law of defamation in England and Wales is governed principally by the Defamation Act 2013 (DA 2013), other relevant statutes such as the Defamation Act 1996 (DA 1996) and Defamation Act 1952 (DA 1952) and the common law.

A defamatory statement is a statement whose publication has caused or is likely to cause serious harm to the reputation of the claimant. The provision extends to situations where publication is likely to cause serious harm in order to cover situations where the harm has not occurred at the time the action for defamation is commenced, see section 1, DA 2013. For completeness, a statement is defined as ’words, pictures, visual images, gestures or any other method of signifying meaning’, see section 15 DA 2013. Defamatory statements can be either written or spoken, and they fall into two main categories: libel and slander. Libel refers to defamatory statements made in a permanent form such as writing or broadcasting. In contrast, slander is the act of making false and malicious spoken statements that damages someone’s reputation.

Examples of online defamation can include incidents where false or harmful statements are made about an individual or business in an online post, in video content or even in an online review and published to third parties on any social media platform, causing serious damage to the individual’s or business’s brand reputation; loss of custom; or other damage. Redress is available to these individuals and businesses by way of legal action in defamation.

There are, however, proactive practical steps that can be taken by an individual or business as well as steps to take immediately after an incident occurs, which may either save the need for legal proceedings; or, if legal action does become necessary, provide a good foundation from which to consider potential legal action.

Step 1 – Regularly monitor your online presence

1.1 Have systems and controls in place

Whether using simple automated tools (eg, Google Alert) or a more sophisticated reputational management service, there are systems and controls that can be put in place – particularly by larger businesses – to monitor their online presence and reputation. These tools and services can include privacy considerations and matters concerning third-party access to confidential business information that could be damaging if made public.

1.2 Promote a positive online presence

Actively developing a strong positive online presence and brand can counteract the impact of negative publicity. Encourage customers to post positive reviews. Focus on resources to positively enhance public image.

1.3 Educate employees where relevant

Develop social media and online communications guidelines for employees because, while they can be the best brand ambassadors for a business, careless posting on social media platforms can jeopardise business reputation.

Step 2 – Consider, address and respond to defamatory or false statements published

Daily communications on social media are prolific and, even if sometimes irritating, are often best ignored. At times, however, seriously damaging and untrue remarks that have a real and significant impact on an individual’s or business’s reputation are shared (and then reshared) to a wide audience. In these cases, it is necessary to take action – both to assess what damage has occurred, to stop further damage and to seek compensation or a retraction as necessary.

2.1 Assess false claims calmly and avoid an emotional response

When faced with serious defamatory or false remarks or claims online, the best immediate course of action for an individual or business is to remain calm and professional and not engage directly with the publisher of the false claim until the landscape has been fully assessed. That is, the source has been identified and the motives and intentions understood. To avoid the possibility of exacerbating the situation by attracting further unwanted attention and increasing visibility of the original defamation, a quick or immediate (possibly emotional) response online is not advisable.

In the aftermath of the incident, it is a good idea to fully assess the situation and seek further professional advice from a third party (whether in-house counsel, an external reputation management firm or PR company, or specialised defamation lawyers).

Later (and this may be within a matter of hours or days depending on the nature of the defamation), it may be advisable to provide a carefully crafted professional response to the press or on social media to provide clarification, minimise damage and perception for business clients and the public. The nature of the response is discussed in more detail at section 2.5 below.

2.2 Assess situation or sources and gather relevant evidence

It is a good idea to:

• assess where the offending material has been published; and
• document and preserve as much of that material as soon as possible from wherever it has been published, shared or reshared.

For the purposes of gathering evidence, it is advisable to ensure that the following is saved:

• screenshots or recordings of the offending material and where it has been shared;
• screenshots or recordings of the offender and their profile;
• details of all identifying material such as dates, times, usernames (particularly important if identity is in question); and
• any comments received (verbal or written) about the offending material.

Please note the above is a general statement of guidance rather than from legislation.

Consider whether what was published is permanent (online posts that last indefinitely that are not intended to be removed) or temporary (eg, social media stories that are designed to disappear after a certain period). The nature and type of format will have an impact on the specific type of legal action (libel or slander, if applicable), the extent of serious harm caused (if any) and likelihood of success, and the evidentiary hurdles (refer to section 3.1).

Investigate whether the false claims or statements are published (and republished on reposting) on other social networking sites such as Facebook, Instagram, LinkedIn, X (formerly Twitter), TikTok, Instagram, Youtube or Snapchat, or on discussion forum websites such as Reddit and Quora. The wider the remit of publication of damaging material, the greater the likelihood of actual damage to reputation (refer to section 3.4.1).

2.3 Report the content to the relevant social media platform(s) or search engine

Social media platforms will include within their terms of use and guidelines the conduct that is expected and required from users of those platforms. These standards are imposed to cover respectful communications to create a positive environment for all users and users sign up to abide by them when creating their social media account. These platforms will generally always ban content that promotes violence, harassment, hate speech or illegal activity (including racial, gender, religious and sexual orientation discrimination).

It is an important step to report defamatory material or false claims published on social media – together with details of the offender – to the relevant platform as soon as possible and request that the offending material be taken down. Most social media platforms will have a reporting feature and will follow the recommended procedure to ensure that your report has been logged and received. You should receive an acknowledgement that your report has been received and it is important to retain a copy of this. This could be relevant and important at a later stage if legal action is commenced and the social media platform does not adequately respond (refer to section 3.3.5 below).

Further, with the coming into force of the Online Safety Act 2023 to enhance the safety of children and adults online (effective since 26 October 2023), there are now greater obligations on online platforms to take action against harmful and unlawful content.

2.4 Consider the impact and consequences with a view to seeking external assistance to minimise damage

The impact of defamatory statements or false claims can be hugely significant. For individuals, this can include reputational damage, emotional distress and financial loss. For businesses, this can include brand reputation damage, loss of customers, impact on culture and employee morale and legal implications. Depending on the extent of damage, it can be necessary and worthwhile to contact a specialised reputation management company to assist in brand maintenance and repair. This may be in lieu of, or in tandem with, specialised legal advice.

2.5 Carefully craft a response to the publication (if appropriate)

Once the situation has been assessed, and professional advice sought, it may be appropriate and advisable to prepare a carefully crafted response on social media to directly address the source of the defamatory statement. Under the common law, there is a qualified privilege defence for those who publish a ‘reply to attack’ statement. This means that once your reputation or behaviour is attacked, you have a right to respond to that attack and any statements you make will not be defamatory. However, the privilege only extends to relevant and proportionate statements in reply and is not a green card to make disproportionate defamatory statements in response. For further detail on the defence of privilege please see section 3.3.4 below.

2.6 Send a cease-and-desist letter (if appropriate)

As an alternative, or in addition, to providing a direct response on social media, a strongly worded cease and desist letter to the author, editor and publisher of the defamatory statement or false claim may be the most effective remedy. Prior to concluding such a letter, consider the legal implications and steps described below. The letter should include the following:

• a clear summary of the defamatory statements made (these can be appended to the letter);
• a declaration that the statements are false and why this is the case;
• the nature of the serious harm caused by the statements;
• the legal cause of action that has arisen as a result; and
• the immediate steps required (with a clear deadline) to prevent any subsequent legal action.

Step 3 – Assess your legal position and the steps required for a defamation action in England and Wales

3.1 Identify the preliminary issues under the law of defamation

3.1.1 Assess whether the claim is in libel or slander

There are two separate torts covered by the law of defamation – libel and slander. Libel covers permanent, (usually) written, publications and is more common. Slander relates to temporary, (usually) spoken, publications. A claim in slander has always typically required proof of special or actual damage unless it falls within the category of a ‘slander actionable per se’. The main categories of slander per se are as follows:

• words imputing a crime punishable with imprisonment; 
• words ‘calculated to disparage’ a person in their office, calling, trade, business or profession (section 2 DA 1952); or 
• in some actions for slander of title, slander of goods or other malicious falsehood (section 3 DA 1952). 

While, prior to DA 2013, a claim in libel required no proof of special or actual damage, this has changed with the introduction of the ‘serious harm’ requirement in section 1 of the Act (refer section to 3.2.4 below).

3.1.2 Assess whether you have ‘standing’ to bring an action

Standing (locus standi) means having the right or ability to bring a legal action before the court. The general principle means that there must be sufficient connection between the person bringing the action and the offence complained of. In defamation, a person (including incorporated associations with legal personality) identified by defamatory material has standing to bring a claim.

While unincorporated associations such as trade unions and charities do not have a distinct legal personality and therefore have no standing to directly bring a defamation claim, individuals within those bodies that are identified by defamatory material can do so. This is an area of the law that is also subject to challenge as a court did recently hold that a trade union with quasi-corporate status had a distinct reputation and was, in fact, directly capable of bringing the legal action – see Prospect v Evans [2024] EWHC 1533 (KB).

3.1.3 Jurisdictional requirements to bring the claim

To satisfy jurisdictional requirements, the defendant to the claim should be domiciled in England and Wales. If this is not the case, the court will only be able to hear and determine the action if it is convinced that, if the material has been published in multiple locations, out of all the places the defamatory material has been published, England and Wales is clearly the most appropriate place in which to bring the action (section 9 DA 2013). In practice, this will involve the court considering questions such as where the claimant’s reputation is most established, in which jurisdiction the publication (and attendant serious harm) happened most extensively and whether another jurisdiction could provide a fair hearing.

3.1.4 Proper defendants

Each of the author, editor and publisher should be joined to the action. According to the DA 1996, an ‘author’ is the originator of the statement, the ‘editor’ is the person having editorial responsibility (or equivalent responsibility) for the statement’s content or decision to publish (or both), and the ‘publisher’ is a commercial publisher whose business it is to issue material to the public (section 1(2) DA 1996). The court does not have jurisdiction to hear and determine an action against another defendant unless it is not reasonably practicable for the action to be taken against the author, editor and publisher (section 10 DA 2013).

With regard to potential other defendants, while any person involved in the publication of a defamatory statement can be joined to any action (and it is possible to be successfully sued in defamation for even ‘retweeting’ a defamatory statement), it will be a defence if they can show:

1. they were not the author, editor or publisher;
2. they took reasonable care in relation to the publication; and
3. they did not know, and had no reason to believe, that what they did caused or contributed to the publication of a defamatory statement (section 1(1) DA 1996).

The court will consider the extent of that person’s responsibility for the content of the statement or the decision to publish it as part of its consideration of (1) and (3) above. (section 1(5) DA 1996).

In circumstances where the originator of the offending statement cannot be identified (eg, as is common online with anonymous posters), but where it is believed a third party has this identifying information, a disclosure order (Norwich Pharmacal Order) can be sought from the court. There are some important requirements for a claimant to fulfil to obtain this order, including that there is a good arguable case of wrongdoing, that the third-party respondent to the order is likely to have the relevant identifying information and that granting the order is necessary and proportionate.

3.1.5 Limitation

Actions in defamation need to be brought within one year from the date of publication.

See the Limitation Act 1980 as amended by DA 1996. Prior to the Defamation Act 2013, the multiple publication rule meant that each separate publication by the same publisher constituted a new publication leading to the possibility of indefinite liability (particularly in online environments). Now, however, the single publication rule (section 8 DA 2013) provides that the cause of action in respect of repeat publications by the same publisher accrues on the first date of publication. While the court has discretion to disapply the limitation period under certain circumstances where, for example, it considers it just and equitable, this power is not commonly used (see section 32A Limitation Act 1980).

3.2 Consider whether all required elements of a defamation claim can be proved

Showing that a statement is defamatory involves several component parts, which are set out below.

3.2.1 The statement is defamatory

The defamatory statement can mean words, pictures, visual images, gestures or any other method of signifying meaning (section 15 DA 2013).

While there is no statutory definition of what is considered defamatory, it is well established that a defamatory remark should lower the claimant in the estimation of right-thinking members of society generally (for more information refer to the authoritative case – Sim v Stretch [1936] 2 All ER 1237). The courts will have regard to the ‘natural and ordinary meaning’ of the words used in the defamatory statement or publication. Evidently, claimants will attempt to argue the most damaging meanings or imputation within a defamatory statement, while defendants will attempt to argue the least damaging meanings.

3.2.2 The statement identifies the claimant

The defamatory statement must identify the claimant. This may still be possible, albeit more difficult, where the claimant is not directly named. For example, where a nickname or initials for the claimant are used. The test for the court is whether an ordinary reasonable person would have understood the statement to refer to the claimant (whether or not that was the intention). Such a reasonable person is taken to be prone to a certain amount of loose thinking and is permitted to draw far-fetched inferences. What is looked at is the general impression that the recipients would have obtained, without any need on their part to formulate reasons for the impression which they obtained. (The authoritative case is Morgan v Odhams Press [1971] 1 WLR 1239).

3.2.3 Publication of the statement to a third party

The terms publish and publication, in relation to a statement, have the meaning they have for the purposes of the common law of defamation generally (section 15 DA 2013). Publication is the foundation for a cause of action in defamation because the law itself is protecting the claimant’s reputation in the eyes of others. Consequently, if the recipient of the defamatory material cannot comprehend (hear, read or see) the material, there has been no communication and therefore no publication.

Ordinarily, defamation happens in the place where the damage to reputation occurs, namely where the damaging material is available in comprehensible form. In the case of online material, this is when it has been downloaded or viewed on the recipient’s computer where they are located (see the authoritative case – Dow Jones & Company Inc v Gutnick (2002) 201 CLR 575). The place of publication therefore is where the offending material has been read, heard or seen by the recipients, and which causes the damage to reputation.

Damage to reputation is presumed whenever the act of publication takes place; however, there is no presumption that the damage is ‘serious’. This is dealt with further in 3.3 below.

3.2.4 Consider whether there has been ‘serious harm’

With the advent of the DA 2013, a threshold requirement was introduced for defamation actions requiring that the relevant publication caused, or is likely to cause, serious harm to the claimant’s reputation (section 1(1) DA 2013 ). Further, for businesses, the requirement of serious harm will not be found unless it is shown to have caused, or is likely to cause, serious financial loss (section 1(2) DA 2013 ).

In terms of the test for ‘serious harm’, the Supreme Court has considered this in Lachaux v Independent Print Ltd [2019] UKSC 27 and held this will be determined by reference to, not only the meaning of the defamatory words (as previously was the case), but also to the actual impact of the defamation. This has significantly raised the bar on the evidentiary requirements for a successful action. Further, for businesses, the test of ‘serious financial loss’ is also a higher bar and will be different depending on the size and complexity of the business.

3.3. Consider what defences to the claim may be available

Prior to taking legal action, it is important to consider in advance the potential defences available to a defendant that may reduce the likelihood of a claim’s success in court.

3.3.1 Truth

It is a defence to a cause of action in defamation if the defendant can show that the imputation conveyed by the statement complained of is ‘substantially true’ (section 2 DA 2013). This statutory defence of truth replaced the previous common law defence of justification.

3.3.2 Honest opinion

It is a defence to a cause of action in defamation if the defendant can show that the statement complained of was a statement of opinion and indicates the basis of the opinion; and an honest person could have held the opinion on the basis of any fact that existed at the time of publication or anything asserted to be a fact in a privileged statement published before the statement complained of (section 3 DA 2013). If the claimant can show that the defendant did not hold this opinion, the defence can be defeated. This statutory defence of honest opinion replaced the previous common law defence of fair comment.

3.3.3 Public interest

It is a defence to a cause of action in defamation if the defendant can show both that (1) the statement complained of was, or formed part of, a statement on a matter of public interest and (2) the defendant reasonably believed that publishing the statement complained of was in the public interest (section 4 DA 2013). This statutory defence of public interest replaced the previous common law ‘Reynolds defence’ of responsible publication.

3.3.4 Absolute and qualified privilege

Absolute privilege is a complete defence to a cause of action for defamation in England and Wales, and essentially provides the speaker or publisher with immunity regardless of whether the statement made was false or defamatory. It applies, for example, in complaints made to the police, court proceedings, parliamentary debates and proceedings.

Qualified privilege applies under common law and under statute. Under common law, qualified privilege generally applies where:

• a statement is made and there is a legal, social or moral duty to a person who has a corresponding duty or interest to receive it;
• a statement is made for the protection or furtherance of an interest to a person who has a common or corresponding duty or interest to receive it; and
• a statement is made to a person sharing a common interest.

Under statute, qualified privilege covers the publication of any fair or accurate report or statement on a matter of public interest specifically mentioned in Schedule 1 of the Defamation Act 1996 (as amended by section 7 DA 2013). The defence of qualified privilege can be defeated where the claimant can show the publication was motivated by malice. Malice in this context means that the defendant’s primary motive was to cause the claimant harm.

3.3.5 Internet operator defences

The defences listed below apply to internet operators.

• No responsibility for publication (innocent dissemination) – if a defendant was not the author, editor or publisher of the defamatory statement (and only involved in its dissemination), took reasonable care in relation to its publication and did not know, and had no reason to believe, that what they did caused or contributed to the publication of the defamatory statement, this is a defence to an action in defamation (section 1 DA 1996).
• Defence for operators of websites – it is a defence for a website operator to show that it did not post the defamatory statement on the website (section 5(2) DA 2013). This defence is, however, defeated if the claimant shows that (1) it was not possible to identify the person that posted the defamatory statement, (2) the claimant gave the website operator a notice of complaint in relation to the statement and (3) the operator failed to respond to the notice of complaint in accordance with the procedure referred to in section 5 DA 2013 and in the Defamation (Operators of Websites) Regulations 2013.
• E-commerce regulations – in addition to the above available defences, where a service provider is acting as an ISP, network operator or ‘web host’ and only acting as a mere conduit, caching the material or hosting the material, it will generally not be found liable for material published when it is acting in compliance with Electronic Commerce (EC Directive) Regulations 2002.

3.4. Consider what remedies may be available

The price of a damaged reputation to an individual or a business can be very significant. Similar to general laws of compensation in tort, the court will attempt to make an award of financial damages that will restore the claimant to the position they would have been in prior to when the defamatory statement was made. In reality, financial compensation is often inadequate to address reputational damage. A public acknowledgement and apology may be more powerful.

3.4.1 Damages

In the UK currently, there is a notional ceiling of £350,000 for damages awarded in defamation actions (Lachaux v Independent Print Ltd & Anor [2021] EWHC 1797) because these are civil actions and the damage suffered is comparable to personal injury actions.

Factors taken into account by the court in making its assessment of damages include the gravity of the allegation and the extent of publication. Aggravated damages may be awarded in circumstances where the defendant’s conduct following publication aggravated the damage. Special damages are rarely awarded; however, they would be applied in circumstances where actual financial loss was incurred as a result of the publication.

3.4.2 Apology or statement of judgment

The court will not order the defendant to publish an apology by way of remedy. The court can, however, where a claim has been decided in favour of the claimant, order the defendant to publish a summary of the judgment (section 12 (2) and (3) DA 2013). The wording of the judgment summary together with the time, manner, form and place of publication is agreed between the parties, and where this is not possible, the wording and any other details are settled by the court (section 12(3) and (4) DA 2013).

3.4.3 Injunctions

Interim injunctions preventing the publication of defamatory material are rare as it is necessary for the claimant to show that no potentially successful defences are available to the defendant. Final injunctions, however, may be awarded at the end of the trial of a legal action to prevent the publication of the same or similar defamatory statements by the defendant going forward.

3.5 Consider other possible causes of action

Although outside the scope of this article, a claimant would be well advised to consider parallel or alternative causes of action in the event of the publication of a defamatory remark or false claim on social media. These other causes of action could include a claim in malicious falsehood, misuse of private information, breach of confidence, breach of data protection laws, harassment or negligent misstatement.

3.6 Consider relevant pre-action protocol requirements

The Pre-Action Protocol for Media & Communications Claims contains requirements for all parties to prospective defamation claims including information that should be included in a letter of claim (for defamation, slander and malicious falsehood) and in the defendant’s response to that letter of claim, and it also includes guidance on settlement and alternative dispute resolution methods.

This resource has been developed in partnership with a senior non-practising solicitor, certified mediator and knowledge lawyer qualified in England and Wales, Ireland and California.

Additional resources

Related Lexology Pro content

How-to guide:

The legal framework for resolving disputes in England and Wales

Checklist:

Considerations prior to issuing court proceedings

Panoramic:

Defamation and Reputation Management

Reliance on information posted:

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