Malicious falsehood exists to protect against statements which themselves are not defamatory but are untrue and cause damage. There is no need to show damage to reputation.
It is possible to have a statement which is not defamatory and a claim in libel or slander would not succeed but a claimant still has a claim in malicious falsehood. A claim for malicious falsehood is usually made to protect economic interests. It is more difficult to pursue a claim for malicious falsehood than for defamation.
An example of malicious falsehood would be if it was said that a solicitor had retired from practice. Consequently, this could cause financial loss through lost trade. It is a false statement; it is not defamatory because it does not suggest anything bad about the solicitor, only that he is not now practicing. Another example might be a comparative advertisement; a false statement about your competitor’s products is unlikely to be defamatory but, if false, may well give rise to an action in malicious falsehood.
What does a claimant need to show to make out a claim in Malicious Falsehood?
The statement must be published deliberately to a third party.
The claimant must prove that the statement was not true. It’s not enough to say that one product is better than another. The court will not determine that but will when a statement is made which is untrue about a product.
There needs to be reference to the claimant or to his business, property or other economic interests.
The statement must be published maliciously. Malice is defined as a statement made by a party who knows that the statement is false or is reckless as to its truth. Being negligent as to the truth of the statement is not enough, or if the words are published in good faith, even if they are false. Where a defendant intending to cause harm publishes words they believe to be true but turn out to be false, then they could be liable. But when the intention was to benefit their own business, the fact that they damaged another business, is not evidence of malice.
A claimant must establish that they have as a direct result of the publication suffered actual loss that can be specified in monetary terms. There is no provision for general damages as in a libel claim. Usually the type of damage will be loss of trade.
There are exceptions to this. Where the offence is actionable under section 3(1) of the Defamation Act 1952, it is not necessary to prove actual damage if the words in dispute are calculated to cause financial damage to the claimant and are published in writing or other permanent form or; calculated to cause financial damage to the claimant in respect to his office, professional calling, trade or business.
“In an action for … malicious falsehood, it shall not be necessary to allege or prove special damage –
(a) if the words upon which the action is founded are calculated to cause pecuniary damage to the plaintiff and are published in writing or other permanent form, or
(b) if the said words are calculated to cause pecuniary damage to the plaintiff in respect of any office, profession, calling, trade or business held or carried on by him at the time of the publication.”
Calculated to cause pecuniary damage requires a claimant to show that it is more likely than not that they have been caused pecuniary damage by the publication. In cases under s.3, which was specifically enacted because it was accepted that claimants can struggle to prove special damage arising from a publication, for example a drop off in enquiries or investment opportunities, the court must be satisfied that the publication is more likely than not to cause pecuniary damage i.e. that it has caused the loss, so if something else has happened such as another publication which was true which could have caused the damage or the damage had been caused by another publication that was time barred, then the claim will fail.
If the claimant under 3(1) can’t demonstrate actual financial loss it does not mean that the court will award only nominal damages, but the size of the award will be dependent upon the established impact of the publication and so may, in some cases, lead only to modest damages.
Damages for hurt feelings can be awarded in a malicious falsehood claim under general damages. Any harm to the claimant’s reputation cannot form part of the damages award.
The single meaning rule in defamation claims does not apply to malicious falsehood. The court will identify reasonably available meanings and decide if many people would have understood those words in a damaging way.
Truth is a defence to a malicious falsehood claim.
Absolute privilege is a defence to malicious falsehood, but honest comment is not a defence.
If the party making a statement publishes a correction quickly and realises their error, it will go some way to reducing the prospect of a successful claim by the claimant and of being able to show malice.
How long do I have to bring my claim?
The limitation period for a malicious falsehood claim is as a defamation claim 1 year from publication.