UK: Have Companies Lost The Ability To Sue For Defamation?

Last Updated: 20 February 2014
Article by Alasdair Steele

Summary and implications

The Defamation Act 2013 (the Act) and the Defamation (Operators of Websites) Regulations, 2013 (the Regulations) came into force on 1 January 2014. Companies in particular will now face considerable challenges in attempting to bring a successful defamation claim. Other significant changes shift more power to defendants, attempting to move the jurisdiction of England and Wales away from its claimant friendly reputation and provide increased protection for website operators.

Key changes introduced by the Act :

  • Claimants must show "serious harm" to their reputation
  • For companies and other profit making entities, this means demonstrating actual or likely "serious financial loss"
  • New single publication rule
  • New defences, including specific defences for website operators and statements in scientific and academic journals
  • Increased protection for secondary publishers
  • Clamp down on forum shopping

Many of these changes will be welcomed, particularly by website operators, secondary publishers and other frequent defendants. However, companies may need to start exploring other avenues in an effort to preserve their reputations if defamed. Whilst companies are familiar with awards of only nominal damages in successful defamation claims, now, in the absence of demonstrable "serious financial harm", a statement that injures the reputation of a company may not be defamatory at all.

This article explains the key changes and what they might mean for parties involved in or considering launching defamation claims.

1. Serious harm and serious financial loss

In order to bring a claim for defamation it is no longer enough to show, for example, that the statement published is one that lowers the claimant in the estimation of right-thinking members of society. The claimant must now show that the publication of the statement has caused or is likely to cause serious harm to its reputation. Where the claimant is a company (or other body that trades for profit) harm to its reputation is not "serious" unless it has caused or is likely to cause serious financial loss.

It is not yet clear what level of harm will amount to "serious" harm, or what level of loss will constitute "serious financial loss". A company may face a significant challenge trying to prove to a court that first, it has suffered or is likely to suffer serious financial loss, and second, that it was the defamatory statement that caused such loss and not some other factor.

2. Single publication rule

With the advent of the internet came a new concern with defamation – the issue of multiple publications. Prior to the Act the position was that every time a web page was accessed, it constituted a new publication. Consequently, the limitation period for defamation actions (one year from the date of publication), in practice, did not apply to web pages as statements published on a web page were treated as being continually re-published.

The position is now different. Provided a subsequent publication is not "materially different" from the first publication, for the purposes of limitation any action for defamation is to be treated as having accrued on the date of first publication. In determining whether the subsequent publication is "materially different" the court may have regard to, amongst other things:

a) the level of prominence that a statement is given; and

b) the extent of the subsequent publication.

This is a welcome development, which provides greater certainty for website owners and finally brings the issue of limitation in defamation cases into the internet age.

3. Defences

The Act abolishes the common law defences of justification, fair comment and the Reynolds defence, and replaces them with a number of statutory defences. The following are now available defences to actions for defamation:

a) truth;

b) honest opinion;

c) publication on a matter of public interest;

d) peer reviewed statements in scientific or academic journals;

e) statements protected by privilege;

f) website operators are not liable for defamatory statements posted by another person (subject to the key exceptions set out below).

Website operators

Section 5 of the Act provides a new defence for website operators and the Regulations set out a procedure that must be followed by operators in order to use this defence. In summary, if an operator receives a notice of complaint (in accordance with the Act and the Regulations) the operator must, within 48 hours of receipt of the complaint, provide a copy of the complaint to the poster and request consent to the removal of the statement and/or ask for the poster's contact details and permission to pass the same to the complainant. If:

a) it is not possible to contact the poster;

b) the poster does not respond adequately within five days; or

c) the poster consents to the statement being removed,

the operator must remove the statement.

Where the operator fails to follow the procedure set out in the regulations, the defence will no longer be available. The defence will also be defeated where the claimant can show that the operator acted with malice in relation to the posting of the statement.

4. Secondary publishers

A welcome development for secondary publishers is that claims can no longer be brought against a person who was not the author, editor or publisher of the allegedly defamatory statement unless the court is satisfied that it is not reasonably practicable for action to be brought against the author, editor or publisher. Unfortunately, no further guidance has been given as to when the court will be satisfied that action is "reasonably practicable" or not. We therefore await the court's interpretation as cases are brought before it in due course.

5. Clamp down on forum shopping

As a relatively "claimant friendly" jurisdiction for defamation, overseas claimants have often sought to bring defamation claims in England and Wales even if publication here is on a small scale compared with other countries. The Act seeks to limit this forum shopping. It provides that where a potential claimant is domiciled outside of the UK, Switzerland, Iceland, Norway and any EU Member State, then the courts of England and Wales will only have jurisdiction to hear cases in circumstances where the court is satisfied that of all the places in which the statement complained of has been published, England and Wales is clearly the most appropriate place in which to bring the action.


Whilst the bulk of these changes will be welcomed, it is going to be a case of venturing into unchartered territory for those who bring the first cases before the courts, particularly where companies seek to demonstrate "serious financial loss". In the meantime, we can all watch out for new "notice of complaint" email addresses popping up on websites over the coming months.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.