Lexis 200 wide

Raise £5 for charity in 15 minutes.

Complete this short survey and LexisNexis will donate £5 to the International Rescue Committee. We want to find out more about the daily challenges you face when drafting and reviewing legal documents.

The weblink to the survey is: https://www.surveymonkey.com/s/HMSP8QF

Is comment free? PDF Print E-mail
Thursday, 26 May 2011 00:00

How can local authorities respond to defamatory comments on the web? Wesley O'Brien looks at the options.

In these times of austerity, many public bodies are making very difficult decisions which impact on staff and service users. The increased level of awareness and scrutiny of these decisions, coupled with the prevalence of social networking sites and online forums, means that local authorities are fighting a daily battle against critical comments posted online, some of which stray into the realms of libel.

Examples of these that we have advised on include:

  • an anonymous blogger making repeated defamatory statements against a councillor and the council;
  • defamatory statements made in the press and on websites by a former councillor; and
  • defamatory statements made online by a serving BNP councillor against individual named officers.

In March 2011, the BBC reported that a Caerphilly councillor had agreed to pay £3,000 compensation together with “substantial” legal costs and to publish an apology, after he posted a libellous comment about a political rival on Twitter.

This article answers the ten most common questions we receive from our local authority clients about this issue.

1. How do I know whether a statement is defamatory?

A statement, whether spoken or written, is defamatory if it is said, or sent, to a third party and if it contains an untrue imputation against the reputation of an individual, company or organisation. Whether a statement is defamatory is a question of fact that the court will determine. The court will apply the natural and ordinary meaning of the words used, or any special meaning known to the third party to whom the words were spoken or sent.

2. Who is responsible for the publication?

The individual posting the comments is primarily liable. However, the operator of the website and the web host may also be liable if they have been made aware of the defamatory material. To find out who is running the website, the operator’s contact details may often be on the website itself. If it is not obvious, the contact details of the domain name owner will be held by the domain name registrar. Various searches can be carried out to establish this.

3. Who is entitled to sue?

A defamation claim can be brought by, amongst others, an individual (and in certain circumstances a group of individuals), limited companies, firms and LLPs. A claim cannot currently be brought by a local authority or by central government or by any other democratically elected governmental body.

4. Can a local authority fund the costs of a claim brought by its employee against a third party?

As the law currently stands, a local authority can fund a claim brought by an individual officer and it can also assist an officer in defending such a claim, where it considers such public expenditure to be justified. The position is, however, different for members where a local authority is only entitled to fund a defence, but not a claim brought by an individual member. The only condition is that the statements made must refer to and be defamatory of the individual concerned.

In all cases you should bear in mind the potential cost, staff time and adverse publicity that a decision to fund a claim or defence could bring.

5. Can I get damages?

Yes, provided you are entitled to make out a claim and you succeed in your claim, the court will award you damages. Damages in a defamation claim are intended to compensate the claimant for the damage caused by the statement to the claimant’s reputation. The current perceived limit for damages in such a claim is £200,000. However damages awards are frequently less than £10,000.

6. Are there any practical steps I can take to limit the damage caused?

It is always worth checking the website’s content policy as it may be possible to request the removal of defamatory material by contacting the web host direct.  Unfortunately, the content policy of a number of popular blog sites such as Twitter and Google’s Blogger and Blogspot do not contain any such provision. Others, including  wordpress.com, do. Although they will be responsible for the publication, the law provides web hosts and operators with a defence to a claim provided that they took reasonable care in relation to the publication, and did not know or had no reason to believe that what they did caused or contributed to the publication. In practice, it is very difficult for web hosts to rely on this defence once they have been put on notice that they are hosting or making available the alleged defamatory material.

In all cases, including those where it is not possible to make out a claim, it is worth considering whether to formally engage with the person making the statement in  order to allay their concerns and to provide them with all the relevant facts. This may help prevent further defamatory statements being made. A positive publicity campaign counteracting the adverse comments may also assist.

7. What defences might be raised?

There are three main defences to a defamation claim:

  • Justification is the ultimate defence and requires the maker of the statement to prove that the meaning of the defamatory statement is substantially true. They would therefore have to demonstrate that the “sting” or “gist” of the libel is true.
  • “Honest comment”: this requires proof that the words are: (1) comment and not a statement of fact; (2) based on facts which are true or privileged; and (3) on a matter or public interest. Whether a matter is one of public interest depends on the factual circumstances in each case; however, it has been held that the private character and conduct of a person who fills a public office or takes part in public affairs may be the subject for honest comment in so far as it has reference to or tends to throw light on his or her fitness to occupy the office or perform the duties, but not otherwise. The administration of a local authority is also a matter of public interest. This defence is defeated by malice, which is established if the claimant shows that the defendant acted from an improper motive (e.g. spite, or revenge or personal gain). Proof that the defendant was aware that the statement in question was untrue, or was reckless as to its truth, is conclusive evidence of malice.
  • Qualified privilege: this defence is available in a range of situations and arises where the person who makes the statement has an interest or a legal, social or moral duty to make it to the person to whom it is made. As with the defence of honest comment, qualified privilege is defeated if the maker of the statement was motivated by malice. Where the statements have been posted online (e.g. in a blog or on Twitter, both of which are potentially viewable by anyone) it would be difficult for the maker to demonstrate that the statements were made only to those who had an interest in receiving the statements (i.e. the community served by the local authority).

The Ministry of Justice is currently consulting on proposals to reform the libel laws, including a draft Defamation Bill. If the Bill is enacted in its current form, the common law defences of justification and honest comment would be replaced by equivalent statutory defences, and a new defence of “responsible publication on a matter of public interest” introduced which would provide a defence where the maker can show that the statement complained of was, or formed part of, a statement on a matter of public interest, and that he or she acted responsibly in publishing the statement. The Bill would also extend the circumstances in which the defence of qualified privilege applies.

8. How can I find out who posted the statement?

Unless the person posting the comment indicates his or her email address or other contact details on the website, it is often very difficult to determine their identity. It may however be possible to obtain an order from the court requiring the web host to  disclose to you the identity of the individual or their IP address.

9. Can I get the website closed down?

If none of the practical steps set out above succeed, and provided you have put the web host on notice that the site contains defamatory material, you will be entitled to and may succeed in obtaining an injunction against the web host requiring them to remove the material.

10. Am I liable for statements made by people within my organisation?

Yes, an employer is jointly liable for any defamatory statements made by an employee provided the employee was acting within the scope of his or her employment and authority. The question the court will determine is whether there is a sufficiently close connection between the employment and the defamatory statement.

Wesley O’Brien is a solicitor at Bevan Brittan. He can be contacted by email at This e-mail address is being protected from spambots. You need JavaScript enabled to view it .


Latest News

July 31, 2014

Court hearing over Tower Hamlets election to go ahead after challenge fails

An election court will be convened in August to hear a petition over whether the London Borough of Tower Hamlets’ elected mayor should be unseated. Read more
July 31, 2014

Tribunal tells council to disclose criteria used for grading positions of employees

Bradford Metropolitan District Council has been told that it must disclose the criteria it uses to grade employees’ positions. Read more
July 29, 2014

ICO says 'big data' must operate within existing data protection laws

The Information Commissioner’s Office has warned that ‘big data’ – the analysis of massive datatsets – “can – and must – operate within data protection law”. Read more
July 28, 2014

London borough approves abolition of its regional planning committees

The London Borough of Redbridge agreed earlier this month to abolish regional planning committees. Read more
July 24, 2014

Community council rapped for failure to help non-Welsh speakers follow meetings

A community council in Wales has been criticised for failing to provide ways for English speakers to follow its proceedings and for unreasonably preventing a resident from attending its meetings. Read more
July 24, 2014

Leadership of borough council in North West pursue unitary status

Chorley Borough Council’s leadership wants to break away from Lancashire and become a unitary. Read more
July 23, 2014

Government intervention in Doncaster to end early after good progress made

Government intervention at Doncaster Metropolitan Borough Council is to end almost a year early in recognition of progress made in tackling its problems. Read more



Dialogue iStock 000009191235XSmall 146X219
July 31, 2014

Media strategy for local councils - beyond the parish notice board

Will the National Association of Local Councils' guidance to town and parish councillors not to talk to journalists without prior consent have a chilling effect on public life? Eleanor Hoggart, assistant practice director of Legal Services… Read more
Spotlight iStock 000003933485XSmall 146x219
July 24, 2014

Academies and FOI

In an academies case, the First-tier Tribunal has recently considered issues around freedom of information and the boundaries of public and private service provision. Robin Hopkins looks at the lessons to be learned. Read more
July 24, 2014

Data protection, compulsory audit and the NHS

Mandatory ICO data protection audits are likely to be introduced for the NHS by the end of the year. Claire Bentley, Emma Godding and Jane Bennett look at the background and the key issues. Read more
July 10, 2014

Council meetings – lights, cameras, action!

New regulations come into force at the end of this month, leaving local authorities with less than 28 days in which to prepare for their meetings being filmed, tweeted or blogged. Olwen Dutton explains the changes. Read more
June 26, 2014

Speaking up

The High Court ruled earlier this year in a case where a non-planning councillor spoke at a planning committee meeting. Mary Tate examines the ruling. Read more
June 12, 2014

Data protection and child protection

Christopher Knight examines a strike-out application made by a number of local authorities over claims that they held inaccurate and damaging information about the claimant. Read more



Knowledge Bank

May 18, 2012

Managing in a Political Environment

Author: Nicholas Dobson, Freeth Cartwright This paper outlines the changing role of the local government lawyer in the context of the legal, political and constitutional framework of local government. This paper looks at the legal powers that underpin the role of local authorities, including the…
April 19, 2012

General Power of Confidence – ‘A New Hope’?

Author: Nicholas Dobson, Freeth Cartwright The general power of competence has been designed to give councils the confidence to act, using the power as their primary tool, without needing to refer back to central government. The question is: will the new power deliver?
March 27, 2012

Predetermination and Bias - Can Careless Talk Still Cost Decisions?

Author: Nicholas Dobson, Freeth Cartwright Ministers entered government much exercised about the law surrounding predetermination. In the opinion of some, this was a conspiracy by local government lawyers to undermine the democratic process. And they were going to have none of it! The 2010…
March 15, 2012

Recent developments in freedom of information

Author: Anya Proops, 11KBW The body of jurisprudence relating to freedom of information has continued to develop apace over the last year. The exponential growth in appeals being heard by both the first-tier and upper tribunals has meant that practitioners are having to work ever harder to keep…

Older news and features

July 24, 2014

Academies and FOI

June 26, 2014

Speaking up

Click here for full section archive


Featured Jobs

CLICK HERE to search all current vacancies

Featured Courses & Events

50% off LGLtv subscriptions

Sign up for Courses and Events Updates

* indicates required

Services v2

Yellow pages iStock 000009762383XSmall cropTo access details of individual advertisers, please click on the relevant banner below.

To search all entries in the Local Government Lawyer Services Directory, please click here



 Shout_to_the_top_looking_left_iStock_000006002590XSmall_98x74 Latest Blog Posts





Snap Judgement

Will the SRA's decision to remove the 16 hour minimum training requirement...