In order to establish a claim for defamation in English law the claimant must prove that: the statement complained of is defamatory and has defamatory meaning, there has been publication of it and it must refer to the claimant. In addition to this the Defamation Act 2013 implemented a requirement for serious harm.
When is a comment defamatory?
A comment which is deemed to be defamatory is one which injures the reputation of another by:
‘exposing him to hatred, contempt, or ridicule, or which tends to lower him in the esteem of right-thinking members of society’Sim v Stretch  2 All E.R. 1237, 1240
Where defamatory material is posted online, the consequences which can be attributed to it are not artificially quarantined in cyberspace; the effects are felt offline just as if the material had been published in a newspaper or broadcast on television. This definition acts to define a defamatory comment, however the threshold of ‘serious harm’ must for surpassed for a claim to be successful.
What is serious harm?
The implementation of the Defamation Act 2013 bought with it a further test for defamation, which was that a statement cannot be deemed defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant (section 1 Defamation Act 2013).
A defamatory publication will cause serious harm:
‘only if it substantially affected in an adverse manner the attitude of other people, or had a tendency to do so’.Thornton v Telegraph Media Group Ltd  EWHC 1414 (QB),  1 W.L.R. 1985, 52
Does a statement have defamatory meaning?
When considering to whom the attribute of publisher should be given, the judge must consider the meaning behind the defamatory content. The meaning of a defamatory statement is either considered in its ‘ordinary and natural meaning’ or via innuendo (Lachaux v Independent Print Ltd  EWCA Civ. 1334, 60)
In contrast to the ‘ordinary’ meaning of a statement, for a meaning to amount to innuendo, a claimant must, in addition to identifying the meaning complained of, prove the extrinsic facts relied upon and prove that these facts were known to readers.
…to say of a man that he was seen to enter a named house would contain a derogatory implication for anyone who knew that that house was a brothel but not for anyone who did not.Lord Devlin in Lewis v Daily Telegraph  AC 234
What is publication?
A claim of defamation is simply not in what is written, the claimant must show that the libel or slanderous comment has been published.(Hebditch v MacIlwaine  2 Q.B. 54, CA 58). Therefore, for a comment to be rendered defamatory it must be communicated to some person or persons other than the claimant himself.
This comment will then be deemed to be published if it is capable of being understood by the recipients:if the recipient could not read the language or the words were spoken in a different language, there would be no publication (Pullman v Walter Hill & Co  1 QB 524, 527)
In lay terms:
A cannot sue B for defaming him to A himself, or to B himself; that is to say where B reads to himself his libel on A and then locks it away. A must prove that B defamed him to CStephenson L.J in Riddick v Thames Board Mills  Q.B. 881 CA 898
Therefore, defamatory statement about the claimant communicated to the claimant alone may injure their self-esteem but it cannot injure their reputation. Thus it can be seen that the requirement for publication, protects the fundamental pillar of our society, reputation.
What is the Section 5 take down procedure?
The real issue lies with anonymity when it comes to a defamatory statement posted online, and to whom publisher status is attributed. When the author of the complained of statement cannot be identified then it falls to the website operator to deal with the complaint and its removal, otherwise it risks liability as a publisher. Once a complaint has been made under s.5(3)(b) it triggers the Defamation (Operators of Websites) Regulations 2013.
The first stage is the notice of complaint where the website operator will pass on information to the poster of the complained of statement, and inform the author, the post will be removed within 48 hours unless he or she complies with the Regulations. This provides the essential information that is required of the poster to provide to the website operator, such as a valid email address for correspondence.
Following this, upon the receipt of a valid notice of complaint, action is required on the part of the website operator and requires that it must respond to any complaint within 48 hours on business days to rely on the section 5 defence. If the poster does not respond adequately to the notice, then the statement will be removed. However, if the poster does not wish its post to be removed and has complied with the Regulations it will remain on the website and the operator shall not be held liable for statements they did not make.
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We understand how damaging defamatory statements can be to an individual or business and we invite you to contact us so we can assess your claim. We can subsequently provide urgent help, advice or representation to clients whose reputation and privacy is at risk.