DEFAMATION AND WHISTLEBLOWING
What does it mean?
If you have raised whistleblowing concerns and your employer and/or individuals referred to in your whistleblowing report consider the report to be untrue, they may accuse you of having defamed them.
Defamation is the publication of a false statement that has caused, or is likely to cause, serious harm to a person’s reputation.
Defamation covers both libel and slander.
- Libel relates to defamatory publications that are permanent, such as written materials, letters, books, articles and material published online, including Tweets and Facebook posts. It also includes recordings of TV programmes, radio broadcasts, and video blogs.
- Slander relates to transient (temporary) publications, such as spoken words or gestures.
If you have been threatened with a defamation claim or are worried that you have defamed someone, you may wish to consider the legal principles set out below. Please note that these are guiding legal principles only.
When might defamation occur?
The key ingredients of a claim for defamation are as follows:
1. A publication/communication to a third party which refers to an identifiable person;
Publication/communication= this includes emails, social media posts, video/voice recordings, comments spoken in a meeting etc. (see above for the difference between libel and slander).
Third party= at least one other person who is not the claimant.
Identifiable person= someone who can be identified, directly or indirectly. This could be any colleagues you allege have committed wrongdoing or an organisation, such as your employer.
2. One or more statements in that publication are capable of bearing a defamatory meaning;
There is no single definition of when a statement will be defamatory. As such, whether a statement is defamatory will very much depend on the facts of the case. However, case law has found that a statement is defamatory where it ‘tends to lower the claimant in the estimation of right-thinking members of society’ (Sim v Stretch  2 All ER 1237).
3. Which cause (or are likely to cause) the reputation of a person or corporation to suffer serious harm.
Following the Defamation Act 2013 (the “DA”), the threshold for bringing a claim for defamation is a high one as a statement is not defamatory unless its publication has caused or is likely to cause “serious harm” to the subject’s reputation.
When deciding this question, a court will consider factors such as the reach of the statement (how many people have read/heard it), the nature of its audience, the situation of the person who alleges they have been defamed, and the reaction of those to whom the statement was made. In the case of a corporate entity, such as a company, the serious harm to its reputation needs to have caused, or be likely to cause, serious financial loss.
N.B. A defamation claim must be brought within one year of publication, which is a shorter limitation period than other torts.
What can happen if I defame someone?
If a defamation claim brought against you is successful, the court may award any of the following remedies:
Damages (i.e. money): Damages aim to compensate the claimant for damage to reputation, vindicate (clear) the claimant’s reputation and take account of the distress or humiliation caused by the publication. There are a number of categories of damages, but the most common are general damages, which look to compensate the claimant generally for the harm suffered, and special damages where the claimant has suffered a specific financial loss as a result of the defamation (for example they have lost business opportunities because of the damage to their reputation).
Injunction: This is where the court orders you not to republish the defamatory statement. The claimant could apply for an injunction before the case has been decided (known as an “interim injunction”), but these are very rare. If the claimant is successful in their defamation claim, then the court may grant a final injunction preventing further or future publication of the statement in question.
Non-legal remedies: such as obtaining an apology, a retraction and/or a corrective statement. These are often what a claimant will want most to clear their reputation.
Are there any defences to a defamation claim?
There are a number of defences to a defamation claim. The four main defences relevant to a whistleblower are:
1. Truth (section 2 DA). A court will presume that the statement in question is false. As such, in order to rely on this defence you will have to prove that the statement is “substantially true”. Though it is not necessary to prove the truth of every detail or single word of the publication, you will have to prove that the substance or essence of the statement is true.
2. Honest opinion (section 3 DA). It is a complete defence to a defamation claim if you can show that the statement was a statement of opinion, that it indicated the basis of your opinion, and that an honest person could have held the opinion on the basis of any fact that existed at the time. Your opinion must be based on true facts. This defence will not be available if the claimant can show that you did not actually hold that opinion.
3. Public interest (section 4 DA). This defence is available where (1) the defamatory statement, or part of it, is on a matter of public interest and (2) you reasonably believed that publishing the statement was in the public interest. In deciding these two questions, the court will look at all the circumstances of the case. One factor that a court may consider is whether you followed any relevant formal complaints and/or whistleblowing process before publishing statements about the employer more widely. It is more likely that the statement will be found to have been made in the public interest if you first followed your employer’s whistleblowing policy.
4. Common law qualified privilege. Common law qualified privilege may protect the statement you made if you were under a duty (legal, social or moral) to make the statement and the recipient had an interest in receiving it. The privilege defence is more likely to be available if you have acted responsibly, for example, by following your employer’s whistleblowing policy. This defence will fail if you acted with malice (i.e. improper motive or ill-will, for example, to get back at a colleague with whom you are upset).
Dos and Don'ts
If I express an opinion about my employer, is that okay?
Expressing an honest opinion is a defence to a defamation claim under the DA, provided the statement was one of opinion, that it indicated the basis on which that opinion was held, and that an honest person could have held that opinion. There is no requirement that the comment or opinion expressed must be fair, so provided these conditions are met, you are entitled to express your opinions, even if they are extreme.
Care should however be taken from an employment perspective (see the FAQ at the paragraph below).
How do I minimise the risk of my employer bringing a defamation action against me?
Follow your employer’s internal whistleblowing policy, if possible. Keep any disclosures made to facts and events that you are confident are true and accurate, and report your disclosures only to those who need to see them. If you express an opinion when raising whistleblowing concerns then make clear that it is your opinion, the reasons you hold that opinion, and the facts that have led you to hold that opinion.
Social media is a particularly high-risk area for defamation claims. You should be particularly mindful of what you are posting on blogs, internet forums, online newspaper comment sections, and social networking sites. If you do make comments about your employer or any of your colleagues, these should be expressed in the correct forum, be limited to statements of fact or truth, and be based on your own justifiable opinions.
Please note that postings on social media may also breach your employer’s policies and procedure, entitling them to take action under their disciplinary policy. Posts on social media are very unlikely to be protected disclosures under whistleblowing law.
My employer has threatened me with legal action. What can I do?
You should attempt to engage in open conversations with your employer as soon as possible to understand what has prompted them to threaten legal action. There may be a number of straightforward options available to you, for example you could offer to remove or delete a statement or post and/or apologise, although if the threat of legal action has arisen from you raising whistleblowing concerns then you may not want to retract what you have said.
If your employer thinks they have a legitimate claim against you, they are required to comply with the rules and guidelines that parties must follow in respect of defamation claims before issuing a claim. This is known as the Pre-Action Protocol for Media and Communications Claims. They must send you a Letter of Claim setting out their complaint (also known as a Letter Before Claim or a Letter Before Action). The Letter of Claim is intended to encourage early settlement if possible and will typically include a request for the statement to be taken down, retracted or for an apology to be issued. The majority of disputes are resolved without the need for court proceedings. However, you should seek independent legal advice if you receive a Letter of Claim or if a defamation claim is issued against you.
How long does my employer have to bring a claim against me?
Your employer has one year to bring an action for defamation against you from the date the alleged defamatory statement was published. The court can extend this period of time but only in very limited circumstances. In accordance with the DA, where a statement is republished by the same publisher in substantially the same form as the first statement, the time limit is judged to run from the first publication and not any subsequent republication.
What are the risks if I go to court? What about costs?
Although the Pre-Action Protocol for Media and Communications claims seeks to encourage early settlement without the need to go to court, this is not always possible. There are typically high costs associated with taking a defamation claim to trial and the process is time-consuming and can be mentally and emotionally demanding. As the claim will take place in the civil courts (rather than the employment tribunal), if you lose then you may be ordered to pay the other side’s costs in addition to your own costs. Costs include court fees and legal fees. Even if you successfully defend a defamation claim, you are unlikely to recover all of your costs.
Need advice on this?
You can contact the Protect Advice Line for advice on defamation and whistleblowing.
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