Malicious Falsehood

Malicious Falsehood in English Law: Principles and Recent Developments (May 2025)

What Is Malicious Falsehood?

Malicious falsehood is a distinct economic tort in English law, designed to protect claimants against malicious lies that cause or are likely to cause financial harm. It often serves as a companion or alternative to defamation claims, especially where the false statement at issue is not defamatory of the claimant’s reputation but nonetheless inflicts economic damage. Unlike defamation, a malicious falsehood claim does not require proof of damage to reputation, and it is actionable only upon proof of actual pecuniary loss or satisfaction of certain statutory criteria. Notably, the notorious “single meaning” rule of defamation does not apply to malicious falsehood claims, allowing claimants to base their case on any false meaning a substantial portion of the audience would infer from the words. Over the past few years, the High Court and appellate courts (including the Supreme Court) have revisited the elements and scope of this tort, clarifying the requirements for liability and the recoverability of damages.

Key Legal Requirements

To establish liability for malicious falsehood, a claimant must prove four key elements: (1) a false statement of fact published to a third party, (2) reference to the claimant or their identifiable business or economic interests, (3) malice on the part of the publisher, and (4) resulting pecuniary loss (special damage) unless dispensed with by statute. In essence, the tort arises when a defendant maliciously publishes false words about the claimant (or the claimant’s business, products, or property) that cause quantifiable financial loss.

Falsehood and Publication:

The statement in question must be objectively false. The burden is on the claimant to prove falsity (unlike in defamation, where falsity is presumed and truth is a defence). The false statement must be published to at least one third party intentionally (an accidental publication would not suffice). General advertising “puffery” or vague boasts between commercial rivals will not meet this threshold; the false assertion must be sufficiently concrete and factual to be proven untrue. Moreover, the statement must clearly refer to the claimant, their business, or specific economic interests – either explicitly or by reasonable inference. This requirement is analogous to the reference requirement in defamation. Statements about a claimant’s property or products (for example, disparaging a company’s goods as dangerous or worthless) can fall within the tort, as can false allegations affecting the claimant’s business goodwill (such as falsely announcing that a trader has ceased trading) – historically known as “slander of goods” or “slander of title,” which are types of malicious falsehood.

Malice:

A defining feature of malicious falsehood is the requirement of malice. The claimant must show the defendant published the false statement with an improper motive or knowledge of falsity. In legal terms, “malice” means that the publisher either knew the statement was false or was reckless as to its truth, or otherwise published it with a dominant motive to injure the claimant. Mere negligence in failing to verify a statement is not enough, there must be conscious wrongdoing or a dishonest intent. Even if the publisher honestly believed the statement to be true, they may still be found to have acted with malice if their primary motive was to harm the claimant (for instance, a personal vendetta or competitive malice) rather than to communicate honestly on a matter of interest. However, pursuing one’s own legitimate commercial advantage is not inherently malicious; the courts draw a line between illegitimate spite and ordinary competitive conduct. As one illustration, a business competitor who promotes their own product with false claims might be liable if the dominant aim was to injure a rival, but not if the aim was simply to advertise their product (even though a false comparison may incidentally harm the competitor). The malice element makes malicious falsehood a difficult cause of action to maintain, a point underscored by recent case law where claims have faltered due to insufficient evidence of malice. For example, in Samuels v Henry [2024] EWHC 2898 (KB), an action by a solicitor against a former client over alleged false Google reviews was struck out, in part because the claimant could not prove that the defendant (even if he had posted the reviews) did so with the requisite malicious intent. The court emphasised that without credible evidence of a dishonest or improper motive, a malicious falsehood claim cannot succeed.

Pecuniary Loss and Section 3(1) of the Defamation Act 1952:

At common law, a claimant in malicious falsehood had to plead and prove special damage, a specific monetary loss caused by the false publication. General allegations of lost business or injury (without quantification) are insufficient; the loss must be “the direct and natural result” of the publication and economically measurable. This historically high bar has often made malicious falsehood claims rare and challenging. Recognising the difficulty of proving actual losses (for example, it may be hard to trace exactly which customers were deterred by a false statement), Parliament enacted an important relaxation in s.3(1) of the Defamation Act 1952. Under section 3(1), it is not necessary to prove special damage if the words complained of “are calculated to cause pecuniary damage” to the claimant and are published in a permanent form, or if they are spoken or written in context of the claimant’s office, profession, calling, trade or business. In modern terms, “calculated to cause pecuniary damage” means that the statement is objectively likely to cause the claimant financial loss. The courts interpret this by asking whether, at the time of publication and in light of the facts known (or that ought to have been known) by the publisher, the words would probably tend to result in financial harm to the claimant. If this threshold is met, the claim is actionable per se (the claimant can sue without having to wait for actual loss to accrue).

It is critical to note that satisfying s.3(1) dispenses only with the need to prove loss for the purpose of establishing liability. It does not automatically entitle the claimant to substantial damages absent any real loss. This distinction was conclusively clarified by the Supreme Court in George v Cannell [2024] UKSC 19, a landmark decision that will be discussed in detail below. In summary, a claimant who proves that the falsehood was likely to cause financial loss (thus invoking s.3(1)) can succeed in showing the tort was committed, but if no actual loss materialised, they will recover only nominal damages. In George, the claimant (Ms. Fiona George) had not, in fact, lost any revenue or business as a result of the defendant’s false statements, but those statements were found to be of a kind likely to cause such loss. The Supreme Court held that her claim succeeded on liability by virtue of s.3(1), even though she suffered no provable loss, however, the absence of actual damage limited her to a purely nominal recovery.

How Malicious Falsehood Differs from Defamation

Malicious falsehood and defamation are related torts, both involve injury by false statements, but they protect different interests and have distinct requirements. A few important differences for practitioners to note are:

Nature of Harm:

Defamation chiefly protects reputation, whereas malicious falsehood protects economic interests. A statement need not be defamatory (i.e. it need not lower the claimant in others esteem) to ground a malicious falsehood claim; it is enough that it is false, malicious, and causes or is likely to cause financial loss. For example, falsely stating that a trader has ceased business or a professional has retired might not defame them (as it suggests no wrongdoing) but could still cause clients or customers to go elsewhere, giving rise to a malicious falsehood action.

Proof of Damage:

In libel (written defamation) and certain types of slander, the law presumes damage to reputation without need for special damage. By contrast, malicious falsehood requires tangible loss or the likelihood of it. The Defamation Act 2013 introduced a requirement that defamatory statements must cause “serious harm” to the claimant’s reputation (and for bodies trading for profit, “serious financial loss” flowing from the defamatory publication). Malicious falsehood has no equivalent statutory threshold of seriousness, but the built-in requirements of malice and pecuniary loss serve as a natural screen against trivial claims. Indeed, malicious falsehood can sometimes fill a gap left by defamation law: where a false statement causes economic loss but does not meet the Defamation Act 2013’s test of “serious harm to reputation,” a claimant might pursue malicious falsehood if malice can be shown. (In George v Cannell, for instance, the defamation claim was rejected for want of “serious harm” to reputation, yet the malicious falsehood claim succeeded on its own terms.)

Falsity and Defences:

Truth (justification) is a complete defence to a malicious falsehood claim, as falsity is an essential element of the tort. Likewise, absolute privilege (e.g. statements in Parliament or court) will bar a claim. However, certain defences peculiar to defamation do not apply. There is no defence of honest opinion (formerly fair comment) in malicious falsehood because the claim targets false assertions of fact published with malice, not genuine opinions. Similarly, the defendant cannot rely on qualified privilege without peril: while a privileged occasion (such as a fair and accurate report of proceedings, or a business reference given in good faith) might protect a defamatory statement absent malice, any malice on the defendant’s part defeats the privilege. In practice, if malice is proven, the statement loses qualified privilege protection – so a claimant who proves malice for the tort has, by definition, overcome any qualified privilege that might have applied.

Single Meaning and Multiple Meanings:

As noted, the single meaning rule of defamation, which requires the court to pin down one “true” defamatory meaning of the words, does not govern malicious falsehood. A claimant may base a malicious falsehood action on any false meaning that a substantial number of recipients would reasonably take from the publication. This is advantageous where words are ambiguous or have mixed implications: the claimant is not fixed to a single literal interpretation and can proceed on a nuance of meaning that was both false and damaging (even if other readers might interpret the statement differently). The flip side is that the court must be satisfied that the proffered false meaning is one genuinely conveyed to a non-trivial segment of the audience. The absence of the single meaning rule was confirmed in Ajinomoto Sweeteners Europe SAS v Asda Stores Ltd  [2010] EWCA Civ 609, where the Court of Appeal held that the rule applicable in libel has “no applicability to the tort of malicious falsehood”.

Damages:

General damages for loss of reputation, which are a major feature of defamation awards, do not feature in malicious falsehood. The claimant can recover only pecuniary losses actually suffered (and proven) as a direct result of the falsehood, plus any additional limited sums that fall under specific heads such as aggravated damages (if the defendant’s conduct was particularly egregious or insulting). Crucially, injury to feelings (mental distress or humiliation) is not a recoverable head of damage in malicious falsehood unless it is parasitic on actual financial loss. The Supreme Court in George v Cannell unequivocally held that, given the economic nature of this tort, damages for hurt feelings can only be awarded if such injury is a consequence of financial loss caused by the publication. In other words, a claimant who proves the tort but has not lost any money cannot receive compensation for distress alone, they are limited to nominal damages in the absence of quantifiable loss. (By contrast, a defamation claimant, once serious harm to reputation is established, may recover general damages including for distress and hurt feelings as part of the reputational injury.) This clarification in George reversed a Court of Appeal ruling that had potentially opened the door to stand-alone injury-to-feelings awards in malicious falsehood claims. It is now clear that malicious falsehood affords a remedy for economic loss first and foremost, with emotional harm only compensable in tandem with that economic loss (or via aggravated damages in exceptional cases of malicious conduct).

Injunctive Relief:

Courts have historically been more willing to grant interim injunctions to restrain a malicious falsehood than to restrain a libel. The general rule from Bonnard v Perryman [1891] (that interim injunctions should not be granted in defamation cases unless the defence of truth is bound to fail) also informs malicious falsehood cases because freedom of expression is at stake. However, if a claimant can show a clear case of falsehood and malice with a likelihood of irreparable economic harm, injunctive relief may be obtained. For example, in Al-Ko Kober Ltd v Sambhi [2017] EWHC 2474 (QB), Whipple J. took the unusual step of granting an interim injunction to take down a series of YouTube videos that disparaged the claimant’s products, coupled with an order under data protection law. The court was satisfied that no conceivable defence of truth could succeed on the evidence (the defendant had no proof for his allegations), meeting the high threshold required to justify prior restraint. This demonstrates a tactical advantage: a malicious falsehood claimant with strong evidence may secure a stop-now order to prevent ongoing economic damage, whereas a defamation claimant, even with a strong case, often must wait for trial to enjoin publication. Nevertheless, the hurdle remains high in both torts – the courts will not gag a publication lightly, especially where truth is asserted; they must be convinced the impugned statements are plainly false and malicious.

Landmark Decision: George v Cannell [2024] UKSC 19

The most significant recent development in malicious falsehood is the Supreme Court’s decision in George v Cannell , handed down in June 2024. This was the first time the UK’s highest court had substantively examined the tort of malicious falsehood, and its judgment provides authoritative clarity on two important questions: (1) What does a claimant need to prove to satisfy section 3(1) of the 1952 Act (i.e. to sue without showing actual loss)? and (2) If the claim is established without actual loss, can the claimant recover anything beyond nominal damages – in particular, can they recover damages for distress or injury to feelings?

Context:

The case arose from an employment dispute in the recruitment industry. The claimant, Ms. Fiona George, had left the defendants’ agency (LCA Jobs Ltd, run by Ms. Linda Cannell) and joined a competitor. In response, Ms. Cannell told an LCA client and the claimant’s new employer that Ms. George was breaching post-termination restrictive covenants by soliciting LCA’s clients. In fact, this was false, there was no such restriction in Ms. George’s contract, a fact Ms. Cannell knew. The false statements did not cause provable financial loss: Ms. George’s new manager discovered the truth (upon seeing her contract), and the client approached by Ms. George chose not to move its business for unrelated reasons. However, the statements were plainly calculated to deter clients from dealing with Ms. George (thus likely causing economic loss). Ms. George sued for libel and slander (which failed under the “serious harm” test) and for malicious falsehood.

Procedural History:

At first instance, the High Court (Saini J) dismissed the malicious falsehood claim, holding that Ms. George had not proved actual financial loss or a sufficient case under s.3(1) – the judge took the view that a “backward-looking” showing of probable loss was needed (i.e. proof that in fact some loss likely occurred). The Court of Appeal in 2022 reversed that decision, adopting a more claimant-friendly “forward-looking” test: it held that so long as the false statement was inherently likely to cause pecuniary damage, the s.3(1) requirement is met, even if no loss actually eventuated. The Court of Appeal also held, breaking new ground, that once liability for the tort is established, the claimant may recover general damages for the mental distress caused by the false publication, despite having no actual financial loss. This raised the prospect of publishers facing liability in malicious falsehood where a defamatory claim might fail, and having to pay damages for emotional harm even in the absence of economic loss. Unsurprisingly, the defendants appealed to the Supreme Court and a media-law advocacy group (Media Defence) intervened, reflecting the broader importance of the issues for free speech and publisher liability.

Supreme Court Judgment:

The Supreme Court (by a 3:2 majority) allowed the appeal in part, refining the law in the following ways:

Actionability per se Confirmed (Forward-Looking Test):

The Court unanimously agreed that section 3(1) makes malicious falsehood actionable per se in the specified circumstances. In other words, a claimant need not prove actual damage to establish the tort, provided it is shown that the words were “likely to cause” the claimant pecuniary loss, assessed at the time of publication. The Justices conducted an extensive historical review, from Malachy v Soper (1836) through Ratcliffe v Evans (1892), and confirmed that at common law special damage was an “essential ingredient”, which s.3(1) partially relaxed. They rejected the defence argument that s.3(1) merely creates a rebuttable presumption of loss; instead, if the likelihood test is met, liability is established even if the evidence at trial shows no loss actually occurred. Importantly, the Court endorsed the Court of Appeal’s “forward-looking” approach: one asks whether the publication was objectively likely to cause financial harm, given the facts known (or that ought to have been known) by the publisher at the time. This interpretation aligns malicious falsehood with the preventive purpose of the tort. to catch malicious trade lies before they inflict actual ruin, rather than leaving claimants without recourse until after damage is done. The ruling provides welcome certainty: claimants can bring an action promptly when malicious falsehoods are published, without waiting to tally proven losses (which could be too late to save a business). From a defendant’s perspective, however, it emphasises that even an ultimately harmless lie can result in liability (albeit only nominal damages), so long as it was the kind of lie likely to cause harm. This underscores a new area of risk for publishers and competitors, as identified by the Court of Appeal, the window for a quick claim is open as soon as the harmful potential of the falsehood is apparent.

Damages Limited to Actual Loss – Nominal Damages if None:

On the question of damages, the Supreme Court drew a bright line. While liability may be established without proof of actual loss, compensation is strictly limited to the claimant’s actual pecuniary loss (if any). The Court held that financial loss remains the touchstone of recovery in this economic tort: if you cannot prove you lost money because of the falsehood, you cannot recover substantive damages. In George, this meant that although Ms. George won on liability, she was only entitled to nominal damages, since she had not demonstrably lost any income or business opportunities due to the statements. The Supreme Court thus overturned the Court of Appeal’s implicit suggestion that courts might assess a hypothetical or anticipated loss under s.3(1) for purposes of awarding more than nominal damages. The correct position now is: establishing liability per s.3(1) gets you across the line, but the award will be nominal,unless you also prove actual damage was suffered. This approach preserves the distinction between malicious falsehood and defamation’s general damages, keeping the former tightly bound to economic loss.

No Stand-Alone Damages for Distress:

The majority (Lord Leggatt, Lord Hodge, Lord Richards) also held that damages for injury to feelings or mental distress are not recoverable in a malicious falsehood claim absent financial loss. They reasoned that the 1952 Act was not intended to protect emotional well-being, the tort’s rationale is economic, and it would be a policy departure to allow “pure” distress damages in this context. The only scope for recovering mental anguish is if it flows from proven financial loss (for example, the stress caused by a business’s collapse due to the falsehood), or potentially as aggravated damages if the defendant’s conduct was particularly outrageous or insulting in a way that exacerbated the injury. Neither scenario applied in George, so no such damages were awarded. This aspect of the decision is particularly notable as it resolves a question that had been open in the case law: earlier authorities had suggested the possibility of recovering general damages (including for distress) in malicious falsehood, especially where malice is present. The Supreme Court’s ruling firmly shuts that door for cases with no proven pecuniary loss. Two Justices (Lord Hamblen and Lord Burrows) dissented on this point, contending that it was inconsistent to label the tort actionable per se yet deny recovery for the very real mental harm a malicious lie can cause. They would have allowed injury-to-feelings damages even with only nominal financial loss, subject, of course, to the ordinary principles of remoteness and proportionality. However, the majority view now prevails. For practitioners, the upshot is that a client aggrieved by a malicious falsehood must be made aware that unless they have suffered quantifiable financial damage, the best outcome may be a judgment in their favour with token damages (and possibly an injunction or a declaratory remedy). Malicious falsehood is not a vehicle for obtaining vindication or solace in the form of substantial damages for hurt feelings, those are the domain of defamation, not this tort.

In conclusion, George v Cannell has refined the tort of malicious falsehood in English law by lowering the hurdle to bring a claim (confirming a claimant can sue based on likely loss without evidence of actual loss), while simultaneously constraining the scope of recovery to avoid windfalls or purely non-pecuniary awards. This balance ensures the tort remains true to its purpose: a shield for businesses and individuals against malicious commercial lies, not a sword for general grievances. The decision is a must-read for media and commercial litigators; it provides a clear framework for advising clients on the viability of malicious falsehood actions post-2024 and on what remedies can realistically be achieved.

Other Notable Recent Applications

While George is the headline case, other recent decisions illustrate the practical application of malicious falsehood principles:

Anonymous Online Falsehoods – Evidence and Malice:

The case of Samuels v Henry [2024] EWHC 2898 (KB) highlights the importance of cogent evidence when attributing false statements to a defendant and proving malice. There, a solicitor sued a former client, alleging he posted false and malicious Google reviews about her firm. The claim was dismissed because she failed to prove that the defendant was indeed the author of the reviews, and, moreover, the court found an absence of evidence of malice sufficient to sustain the claim. Deputy Master Marzec observed that the claimant’s case on malice was essentially a bare assertion without factual support. This outcome serves as a caution: even in the face of hurtful online allegations, a malicious falsehood action will swiftly fail if the claimant cannot pinpoint the publisher or cannot demonstrate the requisite mental element. The judgment also noted the availability of pre-action tools (like Norwich Pharmacal orders to unmask anonymous online publishers) which the claimant had neglected to use. Practitioners should be mindful of employing such tools to gather evidence before launching a claim, given the tight one-year limitation period and the need to plead malice with particularity (especially in the context of digital publication, where identity and intent may be elusive).

Overlap with Data Protection and Harassment:

A trend in recent years is the convergence of remedies when false statements are published online. Claimants sometimes plead malicious falsehood alongside data protection (UK GDPR/DPA 2018) claims or even the Protection from Harassment Act 1997, depending on the nature of the publications. The Al-Ko Kober case in 2017 (discussed above) was an early example where the court granted relief under both malicious falsehood and data protection law to tackle online smear campaigns. Since 2022, with the rise of social media and anonymous attacks, lawyers are increasingly creative in combining causes of action. However, it remains crucial to appreciate the distinct requirements: a data protection claim, for instance, does not require malice or falsity (it focuses on misuse of personal data), whereas malicious falsehood squarely targets knowing falsehoods. Each claim must be substantiated on its own terms. English courts, through the specialist Media and Communications List, are adept at managing these multi-faceted cases, ensuring that the stringent proof needed for malicious falsehood is not diluted by parallel claims.

Procedural and Practical Considerations

Limitation Period: An action for malicious falsehood is subject to a one-year limitation period, the same as for defamation claims. The clock runs from the date of publication of the falsehood (with time starting on the first publication, as the cause of action accrues then). There is no “single publication rule” in malicious falsehood equivalent to that in section 8 of the Defamation Act 2013; however, in practice most malicious falsehoods are one-off statements or publications rather than continuously updated web content. Claimants must act swiftly to investigate and issue proceedings, or seek the court’s discretion to extend time in exceptional circumstances (discretion which is sparingly exercised). Pre-Action Protocol letters (under the Media and Communications Pre-Action Protocol) should be sent, and notably the Protocol requires claimants to outline the financial loss caused or likely to be caused by the publication (or the basis on which s.3(1) is invoked in lieu of proven loss). Even at the pre-action stage, a well-pleaded letter before claim should articulate the malice inference from the facts, since a defendant who receives an early letter outlining the lack of truth and requesting correction can sometimes defuse malice by promptly correcting the falsehood. Conversely, a failure to retract or an aggressive insistence on the false statement may bolster an inference of malice.

Remedies: The primary remedy in malicious falsehood is damages, typically special damages corresponding to specific financial losses (e.g. lost contracts, expenses incurred to mitigate damage). Where s.3(1) applies and the claimant cannot prove exact losses, the court may award a modest sum reflecting the likely loss or as a nominal vindication of the claimant’s rights . As discussed, damages for hurt feelings or reputational harm are generally not available, keeping awards in this tort relatively low compared to defamation. Aggravated damages can be sought if the defendant’s conduct in publishing the falsehood (or subsequent conduct, such as a high-handed refusal to apologise) aggravated the claimant’s damage, but even then the focus is on aggravation of the pecuniary loss or the manner of publication rather than pure injury to pride. Exemplary (punitive) damages are not generally awarded in malicious falsehood, they are rare in English civil law and would require the kind of circumstances outlined in Rookes v Barnard (e.g. calculated torts for profit where compensatory damages are inadequate).

Injunctions, both interim and final, are an important tool. A final permanent injunction is often granted as a matter of course if the claimant succeeds at trial, restraining the defendant from repeating the falsehood. Interim injunctions, as noted, are harder to obtain, but a claimant with compelling evidence of falsity, malice, and impending or continuing loss should consider applying, especially if the damage from even a short-lived publication would be irreparable. The George case itself illustrates another procedural point: because it raised novel questions of law, Media Defence intervened in the public interest , and the Supreme Court’s resolution now guides lower courts. Practitioners should stay alert to such interventions or amicus input in cases at the cutting edge of media and economic tort law.

Forum and Strategy: Malicious falsehood claims in England and Wales are typically brought in the King’s Bench Division (Media and Communications List) alongside any defamation or related claims. The specialist judges of that list are experienced in handling the intricacies of malice and complex causation evidence. Strategically, a solicitor should only plead malicious falsehood where the facts genuinely support it, i.e. where there is evidence suggesting knowing falsity or improper motive, and either provable loss or a clear path to invoking s.3(1). Frivolous addition of a malicious falsehood claim can backfire; if it is struck out (for example, due to insufficient pleading of special damage or malice), the claimant may face costs consequences. On the other hand, there are cases where malicious falsehood is the more suitable cause of action than defamation. For example, a company that cannot easily show “serious harm” to reputation might still show a targeted lie caused or will likely cause sales to drop. Or, multiple meanings of a publication could complicate a defamation claim, whereas a malicious falsehood claim can zero in on the one false meaning that hurts economically.