Warning Others About a Date Online: What Defamation Law Says About Serious Harm, Truth and Honest Opinion in England and Wales and in Scotland

After a bad experience with a match, some people are tempted to post about it on social media, in a review or in a group chat that warns others. The law of defamation governs what can be said about a named person and what defences exist. This guide summarises the statutory wording in England and Wales (the Defamation Act 2013) and in Scotland (the Defamation and Malicious Publication (Scotland) Act 2021). Northern Ireland is not covered, because the sections of the 2013 Act discussed here are marked on legislation.gov.uk as applying to England and Wales. This article is general information, not legal advice, and it does not suggest that any particular post is or is not defamatory. Where a match has committed a crime, reporting it is the alternative to posting; see this site’s guide to documenting and reporting suspicious dating behaviour.

England and Wales: when a statement is defamatory

Section 1 of the Defamation Act 2013 provides that a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant. The threshold is therefore serious harm, not mere upset or embarrassment. Section 1 also says harm to the reputation of a body that trades for profit is not serious harm unless it has caused or is likely to cause serious financial loss.

England and Wales: the main defences

Truth (section 2). It is a defence for the defendant to show that the imputation conveyed by the statement is substantially true. If a statement conveys two or more distinct imputations and one is not shown to be substantially true, the defence does not fail if the remaining imputations do not seriously harm the claimant’s reputation.
Honest opinion (section 3). The statement must be a statement of opinion, it must indicate, in general or specific terms, the basis of the opinion, and an honest person must have been able to hold that opinion on the basis of facts that existed at the time or matters in certain privileged statements. The defence is defeated if the claimant shows that the defendant did not hold the opinion.
Publication on a matter of public interest (section 4). The defendant must show that the statement was, or formed part of, a statement on a matter of public interest and that they reasonably believed publishing it was in the public interest. In deciding this, the court must have regard to all the circumstances of the case.

Scotland: a separate statute with similar tests

The Defamation and Malicious Publication (Scotland) Act 2021 uses different terms, such as defender and pursuer, but its provisions follow a similar structure:

Serious harm (section 1). A right to bring defamation proceedings accrues only if the statement has been published to a person other than the person it is about and its publication has caused, or is likely to cause, serious harm to that person’s reputation. The Act defines a statement as defamatory if it causes harm to a person’s reputation, meaning it tends to lower the person’s reputation in the estimation of ordinary persons.
Truth (section 5). It is a defence for the defender to show that the imputation is true or substantially true.
Public interest (section 6). The defender must show the statement was, or formed part of, a statement on a matter of public interest and that they reasonably believed publishing it was in the public interest.
Honest opinion (section 7). The statement must be an opinion, must indicate the evidence on which it was based, and an honest person must have been able to hold the opinion on the basis of that evidence. The defence fails if the pursuer shows that the defender did not genuinely hold the opinion.

Posts on websites and platforms in England and Wales

Section 5 of the 2013 Act deals with website operators. Where an action is brought against the operator of a website over a statement posted on it, it is a defence to show that the operator did not post the statement. The defence is defeated if the claimant shows that it was not possible to identify the person who posted it, that the claimant gave the operator a notice of complaint, and that the operator failed to respond in accordance with regulations.

What this means in practice

A statement that is true and can be shown to be true has a defence in both England and Wales and Scotland, but the person publishing it must be able to show that it is true, not merely believe it.
Both statutes require serious harm to reputation before a statement is actionable, and the courts decide whether that threshold is met.
Reporting a crime to the police is a separate route from publishing an accusation online.

Frequently asked questions

Does a statement have to reach other people to be actionable?

In Scotland, the 2021 Act says a right to bring proceedings accrues only if the statement has been published to a person other than the person it is about, and it defines publishing as communicating the statement by any means to a person in a manner that the person can access and understand.

Is a truthful post always protected?

Truth is a defence under section 2 in England and Wales and section 5 in Scotland, but the person publishing must show that the imputation is substantially true.

The bottom line

Under the statutes, a statement about a match is defamatory in England and Wales only if it causes or is likely to cause serious harm to reputation, and in Scotland only if publication causes or is likely to cause serious harm. Truth, honest opinion and public interest are the main statutory defences, each with conditions that the person publishing must meet. Where conduct amounts to a crime, reporting it and documenting what happened is the more direct route, and anyone facing a claim should take legal advice.