Malicious falsehood exists to protect against statements which themselves are not defamatory but are untrue and cause damage. 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.
- An example of malicious falsehood would be a situation if somebody says that a solicitor has retired from practice. As a consequence 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 ,just 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.
In a claim for malicious falsehood the Claimant must prove that the statement was not true and published maliciously.
Malice is defined as a statement made by a party who knows that the statement is false or reckless as to its truth. Being negligent as to to the truth of the statement is not sufficient.
A Claimant has to establish that he or she has suffered actual damage/ loss in order to be able to bring an action for malicious falsehood. There are exceptions. 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 the permanent form or;
- calculated to cause financial damage to the Claimant in respect to his office, professional calling, trade or business.
The limitation period for a malicious falsehood claim is as a defamation claim 1 year.
If the party making a statement publishes a correction quickly and realises the error it will go some way to reducing the prospect of a successful claim by the Claimant being able to show malice.