Defamation in Guernsey: Understanding the Risks in the Digital Age

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Defamation has become increasingly prevalent in this era of social media where all it takes to post an ill-considered message in the heat of the moment to a worldwide audience is a few taps of our fingertips on a handy mobile telephone screen.

But what is defamation? It is a libel (a defamatory publication in permanent form such as the written word) or slander (a defamatory publication in a more transitory form such as speech) referring to the person being defamed and published to a third person.

What, then, is a defamatory publication? In essence, it is a communication that causes an adverse effect on a person’s reputation, i.e. the way he is viewed by other people.

In Guernsey, defamation is primarily a civil matter. Defamation claims are brought in the Royal Court where the law essentially follows the common law position in England and Wales prior to the Defamation Act of 2013 entering into force there.

There are a range of defences to a defamation claim which include: truth or justification (a statement cannot be considered defamatory if it is true, the burden of proof being on the defendant); absolute privilege (where the public interest in freedom of speech is so great that people should be able to speak freely without being worried about being sued for defamation, applicable for example to deputies speaking in States debates and in judicial proceedings); qualified privilege (where people are protected if otherwise defamatory statements are made without malice in certain situations, such as in making fair and accurate reports of public meetings or statements made in the public interest); and fair comment (an honest opinion will not be considered defamation, the key to advancing this defence is that the statement must be presented as opinion, rather than fact, and that the statements made are ones which are actually matters of opinion, rather than fact).

Remedies for defamation include damages, injunctions by which the court may stop further publication and apologies and retractions.

As an alternative to issuing defamation proceedings, which are likely to be very expensive, claims under The Data Protection (Bailiwick of Guernsey) Law, 2017 and The Protection from Harassment (Guernsey) Law, 2005 can be considered instead.

Think before publishing anything that could be defamatory. If you find yourself in need of legal guidance, abt Advocates & Notaries Public can advise.