- Defamation: liability of an employer
Defamation: liability of an employer
Defamation: liability of an employer15th February 2021 - Published by Kuits Intellectual Property Team
In the current environment, there are trends which can be seen when it comes to certain types of claims being made between parties. One of these has been an increase in allegations of defamation. Circumstances for this type of claim arise if a publication is made that is untrue and is likely to cause, or has already caused, serious harm to the reputation of an entity or a person. It is completely understandable that given the fact that many businesses are “on pause” at the moment or are trying to preserve the reputation that they have generated before the impact of COVID, that they are taking steps to stop publications of this nature being made.
One of the issues that we would consider at the outset of a defamation matter is the potential advantages or disadvantages of pursuing a particular Defendant. Often, the individual who made the defamatory comment may not be an attractive potential Defendant for economic reasons, e.g. they are of limited financial means and therefore if the case against them was successful, you would not be able to recover your costs or damages from them. In this instance, it should be considered whether joint liability or vicarious liability can be established against that individual’s employer so that they can be a party to the proceedings.
While all defamation cases will be nuanced on their facts, when considering an action, identifying if an employer is jointly liable is slightly more straightforward than if they are vicariously liable. An employer may be held jointly liable for a defamatory publication by its employee, if the publication has been authorised by the employer, or the employee made the publication within the scope of their employment.
In respect of vicarious liability, it is important to note that the employer itself does not need to have had a part to play in making or publishing the defamatory comments in order to be liable. In this case, it may be that the individual making the defamatory publication did so in the course of their employment and their normal duties. If so, the employer itself could be added as a Defendant to the action and pursued for remedies such as damages and costs.
Where has this been seen before?
The test applied by the Courts to determine if the publication made by the employee was outside of the course of their employment involves a review of how closely the tortious act, in this case the defamatory statement, is connected to the employment of the individual, and consideration would be given to whether it would be fair to hold the employer liable.
An example of an instance where an employer was included as party because he was considered to be vicariously liable was in the case of ‘Freer v Zeb & Ors’. The First Defendant was the employer of the Second and Third Defendants in an action where the Second and Third Defendants allegedly made defamatory statements in relation to the Claimant. The First Defendant was present at the time of the defamatory statements being made and as he employed the Second and Third Defendants, he was added to proceedings on the basis that he was vicariously liable for the publication. Following an application for Summary Judgement made by the First Defendant, it was held that the First Defendant was correctly sued and identified as a party to the action. On the facts of that case the claim against the Defendants was determined to be totally without merit and therefore did not proceed. However, it demonstrates how employers can be identified as vicariously liable for the actions of their employees.
Get in touch with an Intellectual Property lawyer in Manchester
If you are facing a situation where you think a defamatory statement may have been made about you or your business, contact Senior Associate Humna Nadim in our Intellectual Property Department on 0161 838 7816 or email firstname.lastname@example.org.