By Amanda Hamilton, CEO of NALP
Nobody wants to be bad-mouthed. It’s unpleasant and hurtful. Sometimes, it might seem right to stand up to the person speaking ill of you to resolve a conflict early on. At other times, the best course of action is to ignore it and let them get on with it, knowing that it will blow over soon enough. But there are time when you might ask should you – and how should you – deal with it legally?
Is it illegal?
The legal term for publishing lies in the press or media – including Social Media online – is defamation. Whether it be in writing (libel) or made verbally (slander), such comments that damage or are likely to damage another individual e.g. ‘lowers an individual’s reputation in the estimation of right-thinking members of society generally’, potentially may give rise to court action.
The threshold for bringing such an action has been raised since 2013, when the new Defamation Act came into force. A potential claimant now has to prove that ‘serious harm’ has been caused to them.
Where do you start?
It’s imperative that before going to court, the claimant (you, if you are taking the person who has defamed you to court) should comply with the Civil Procedure Rules (the rules that are followed by the courts and parties in civil court proceedings). This means that s/he must follow ‘pre-action protocols for defamation’.
Step one is to send a ‘letter of claim’ to the potential Defendant. Such a letter is very important to get right. It must contain all the protocol requirements such as the name of the claimant, the words complained of and details identifying the publication/broadcast in which they were contained, the date of publication or copy of the transcript of those words. It should also include facts or matters that clearly identify the claimant from the words and how they were interpreted, as well as the particular damage caused by them. Finally, it should describe the nature of any remedies sought. A paralegal, who will usually charge considerably less than a solicitor, can help you draw up the correct letter and gather the evidence. You will need proof of the slander/libel, proof that the person you are accusing did what you are saying, and proof of the impact it has had on you. The purpose of a Letter of Claim is to encourage an exchange of information and hopefully early settlement, if possible, without the need to go to court.
A defendant should respond within 14 days, but this may depend on what the letter specifies. The response should cover whether any further information is required and if so, what specific information is required to deal with the claim, to what extent if any, the defendant accepts the claim and what kind of remedy will be offered. If the claim is rejected, then the defendant needs to specify the reasons why and indicate what facts will be relied upon and finally should include what meaning the defendant attributes to the words complained of.
To go to court or not to go to court?
There’s enormous stress on alternative dispute resolution; i.e. the parties are encouraged to find a solution to their dispute by any other means rather than going to court. Besides, taking the final step to litigate (going to court) is a very costly one for both parties. So, if it all possible – find a way to resolve this outside the courtroom.
If using a paralegal’s services, they can help you negotiate with the defendant’s legal representative. You can also ask for mediation – where an independent third party works with both sides to find an acceptable resolution. This may simply involve a retraction, an apology and the deletion of any online content or it may go further and require a financial payment. Ideally you will find a resolution before going to court and it’s often worth accepting a lower financial offer than you may feel you ‘deserve’ in order to avoid incurring the costs of a court case. Again, your paralegal will be able to advise you.
However, should there be no resolution, and the only alternative left is to litigate, then it is in the hands of the court. At this point you may need to bring in the services of a Barrister to represent you in court, although more and more these days, judges are allowing paralegals to represent their clients in court – however this is at the discretion of the judge. There is no one size fits all with defamation cases. The courts will look at each case on its merits, so you need to be sure you have all the information and evidence needed before you take this step – and even then you can’t be sure the court will find in your favour. Finally, think about the costs – even if you win the case you may not be awarded damages that cover the time, effort, energy and stress you had to put into winning.
No one likes to let someone who has ‘bad mouthed’ them get away with it – it doesn’t feel fair, but if you can avoid the courts, it’s best to do so, or you may find yourself with a pyrrhic victory that you wish you’d never fought for.
ABOUT THE AUTHOR
Amanda Hamilton is Chief Executive of the National Association of Licenced Paralegals (NALP), a non-profit Membership Body and the only Paralegal body that is recognised as an awarding organisation by Ofqual (the regulator of qualifications in England). Through its training arm, NALP Training, trading as National Paralegal College, accredited recognised professional paralegal qualifications are offered for a career as a paralegal professional.
See: http://www.nationalparalegals.co.uk and https://www.nalptraining.co.uk/