Malicious falsehood in English law

Malicious falsehood claims are sometimes made in tandem with, or as an alternative to, defamation claims.

Although both malicious falsehood and defamation claims deal with publication of false statements the main difference between them is that a claimant in a malicious falsehood claim is not required to prove damage to reputation. Another advantage is that the 'single meaning' rule does not apply to malicious falsehood claims, so there may be tactical reasons for bringing a claim in malicious falsehood rather than defamation, although damages tend to be lower.

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A claim for malicious falsehood may be brought against a defendant who maliciously publishes a false statement which identifies the claimant, their business, property or other economic interests, and can be shown to have caused the claimant financial loss or to fall within one of the exceptions in section 3(1) of the 1952 Defamation Act.

A typical situation in which a claim for malicious falsehood arises is where one competitor has made an untrue statement about another’s goods or services, which is calculated to cause the competitor financial loss. Slander of goods or title are types of malicious falsehood.

What does a claimant need to show?

Malicious publication

The defendant must have intended to publish the statements complained of and have done so with an improper motive. Evidence of malice might include proof:

• that the defendant knew that the relevant statements were false;
• that the defendant was reckless as to the truth or falsity of the statements when publishing them; or
• that, even though the defendant believed the statements to be true, their dominant motive in publishing the statements was to injure the claimant’s interests.

Although the initial publication must be intentional, a defendant can then be held liable for subsequent re-publications which follow as a natural and probable consequence of that initial publication.

Meaning and falsity

As, unlike in defamation, there is no single meaning rule in malicious falsehood, a claim can be founded upon any meaning of the words complained of that a substantial number of people who read those words would have understood them to mean.

It is then up to the claimant to prove that the statements complained of were untrue - again unlike in defamation claims, where falsity is presumed and the burden falls on the defendant to prove that the statements are true. Furthermore, the statements complained of, even if false, must be more than "mere puff" between trade rivals, such as that often seen in comparative advertising.

There is also no defence equivalent to the "honest opinion" defence available in defamation. This means that the defendant cannot contend that the inference is one that an honest person could have believed to be true.

Identification of the claimant

The claimant, or the claimant’s business, property or other economic interests, must be identified, whether by way of a direct or an indirect reference.

Financial loss

The claimant must demonstrate that the statement has caused actual financial loss unless it falls within one of the exemptions in section 3(1) the 1952 Defamation Act:

• if the words upon which the action is founded are calculated to cause pecuniary damage to the claimant and are published in writing or other permanent form; or
• if those words are calculated to cause pecuniary damage to the claimant in respect of any office, profession, calling, trade or business they hold or carry on at the time of publication.

In 2022, the Court of Appeal considered the meaning of section 3(1) for the first time and held that the court can take a "forward-looking" approach when assessing whether a claimant has suffered pecuniary loss. This means that, even if no actual loss has been suffered, a claimant can bring forward a claim for losses that are "objectively likely" to arise as a "natural tendency" of the words complained of.

Remedies

Damages are available to claimants who can demonstrate that the statements complained of caused them actual financial loss or, if the statements fall within the exemptions above, likely financial loss. Both interim and final injunctions may also be available.

Tactical considerations

As with defamation, the time limit for bringing a claim in malicious falsehood is one year from the date at which the publication was made (at which point the cause of action will have accrued). Claimants will therefore need to act quickly to bring a claim. Their ability to do so has been made easier by the Court of Appeal’s confirmation that claims can be advanced before actual pecuniary loss has been suffered, as long as it reasonably likely to occur as a natural result of the words complained of. This has lowered the threshold which claimants must meet to bring viable claims for malicious falsehood, which could create a new area of vulnerability for journalists, bloggers and any other media publisher.