Malicious Falsehood

Depending on who you attribute the well-known quote to, a reputation takes a lifetime to build and a second to destroy. Reputation destruction usually follows a defamatory statement which is the communication by someone of false information about another to the public that adversely affects their reputation. Libel refers to defamatory statements that have been written or broadcasted in a permanent form such as a book, newspaper, blog, podcast, or film. Slander refers to defamatory statements that have been spoken.

When it comes to businesses’ reputation, a claim in malicious falsehood protects against statements which are not defamatory but are factually untrue; are made maliciously; and could cause loss or damage to the business. Malicious falsehood is distinct from defamation because there is no need to show that the statement is likely to cause reputational damage.

For example, if a business makes false accusations in an advertising campaign against a competitor’s product or service and there is the potential or actual loss, for example, to revenue.

Pre-action Protocol for Media and Communications Claims

The Pre-action Protocol for Media and Communications Claims guides litigants on the procedure on starting malicious falsehood claims. Parties are obliged to take all possible steps to settle the issues and achieve an early resolution, avoiding court where they can. This includes exchanging Letters of Claim and responses, detailing the basis of the claim; what remedies are sought; and where the points of contention are.

Depending on the result of these exchanges, it may be appropriate to use Alternative Dispute Resolution, such as arbitration, early neutral evaluation, or mediation to resolve the dispute amicably.

Where Alternative Dispute Resolution fails, the Pre-Action Protocol states that the last option is to make a malicious falsehood claim. Usually, malicious falsehood claims are started in the Media & Communications List in the King’s Bench Division and must be brought within one year of the malicious falsehood being made.

Mercantile Barristers have expertise in providing advice and representation in malicious falsehood claims to clients, whether they are businesses or individuals; or commercial law solicitors. We have particular experience in advising clients on whether a statement is malicious and gathering evidence to establish damage.

We also have experience in taking instructions from commercial law solicitors representing their clients in malicious falsehood proceedings before the Media & Communications List in the King’s Bench Division; Court of Appeal and Supreme Court. If you require advice contact our Commercial Litigation barristers today by filling in our Enquiry Form; emailing us at enquiries@mercantilebarristers.com; or by telephone on 0203 034 0077 and we would be happy to assist.