I posted an article on social media last week about a recent defamation case in the Circuit Court. In the case a person had claimed they were defamed by a security operative in a retail store and accused of stealing. As the facts of the case emerged CCTV was produced by the defence which showed that the person had grossly exaggerated the incident and his €75k claim was dismissed.The full article can be read here The response to the article was quite positive across my security contacts. On LinkedIn in particular some people in senior management positions within the security industry spoke about the negative impact that spurious defamation claims can have on insurance premiums and on contracts. In this article I want to talk about defamation. What it is, how it happens and most importantly what organisations and individuals can do to reduce the risk.
What is defamation?
A persons good name and reputation is rightly protected both by the constitution and statute law.
The civil tort of defamation is covered by a law known as The Defamation Act of 2009. This Act defines defamation as:
“ defamatory statement” means a statement that tends to injure a person’s reputation in the eyes of reasonable members of society, and “defamatory” shall be construed accordingly;”
Traditionally defamation had two forms:
1. Libel – written form
2. Slander – spoken form
However, the 2009 Act brought both terms under the single term of defamation.
In order for a statement to be considered defamatory, it needs to have three key ingredients:
It is untrue or unprovable
The claimant can be clearly identified from the statement
The statement is published to a third party.
Judgements in defamation claims can be large and can have a significant impact on companies and individuals both financially (in terms of awards and insurance premiums) and reputationally. There are however a number of defences to defamation:
1. Prove the statement true
2. Qualified privilege (ie the person who was defamed had an interest in hearing the statement or was obliged to hear the statement)
3. The person who made the statement honestly believed it to be true.
Both numbers two and three aren’t absolute and will still be balanced on proportionality against the damage to the persons reputation as a recent case here explained.
I am not not talking here about loopholes to get security staff or companies off when they have actually defamed somebody. I’m talking about protecting ourselves from spurious claims of defamation (and other cases such as negligence and discrimination).
Ill go through a few areas below that individuals and companies can look at to reduce this risk.
1. Know your laws
I have said this over and over again but still when I go out and speak to security operatives or even supervisors who have been involved in defamation claims they aren’t aware of what they have done wrong. Don’t just take my word for it when it comes to law. Go and research it. If you are an organisation have your policies checked by somebody qualified. How many staff (beyond the very basic introduction at licencing) are trained on defamation and how to avoid . I would argue that the majority are not yet it appears to be one of the biggest drivers of insurance premiums for organisations.
How many security operatives would be aware of what qualified privilege is or the need to include it in a line of a report of an incident which may be claimed to be defamatory.
For example, a security operative at a door in a retail store who witnesses a customer leaving the store and activating a gate alarm. They politely approach the customer and tell them that there was an activation and it may have been caused by a security tag left on an item. They ask the customer if they would like them to check. Customer becomes upset by this and either may or may not consent to this.
Now the potential here is that a spurious claim may arise. The customer may claim they were approached and intimidated and defamed in front of other customers. CCTV will show the security staff approach and it becomes a he said/she said situation. A simple line in the security operatives report such as; ” I heard an alarm activation. I believed it may have been caused by a tag left on a customers item. I approached the customer as I felt she needed to be informed of the activation to avoid embarrassment at a later stage from further activations in other stores with a tagged item”. These few line show knowledge of the law, a legal reason for approaching and a professional approach. They could potentially save a lot of money in a spurious claim.
2. Body-worn CCTV
I really don’t know why it isn’t more common outside of the door supervision sector (even then uptake has been slow outside of in-house teams). Of course, there are privacy and data protection issues to be addressed which I’ve spoken about before but these devices are game changers. A good privacy impact assessment showing genuine safety concerns or legitimate interest concerns in deploying them and there is no issue. There is cost involved in set up but nothing nearly as much as the cost involved in a single defamation or other civil claims. I believe they will become basic equipment for retail security operatives in the coming years as a control measure for safety and to reduce potential civil claims. There is multiple research pieces out there pointing to reduction in assaults and complaints where body-worn cameras are deployed.
This is for both individuals and organizations. Report early and often. For security operatives, if you are involved in an incident (whether you are right or wrong) report it early and thoroughly. If nothing comes of it then great. What you don’t want is your employer calling you up after they have gotten a solicitors letter across their desk asking you what it’s about. If you even suspect that there may be a potential claim (defamation or otherwise) then report it. This takes some courage particularly if you have made a mistake but it’s better to face it now and resolve the impact of your mistake.
The same applies to employers and companies. When it comes to potential defamation or other claims engage with insurers and/or legal advisors early and often. Contrary to popular belief insurance companies don’t mind you calling them for advice in advance of any potential claim. It gives them a chance to help you prepare before the claim comes in and even if the claim doesn’t come in they can advise as to what you can do to prevent further issues. If you don’t want to approach your insurers then feel free to get legal advice anyway for the same reasons. Legal advice will cost you but may save you some money in the award if you are better prepared in advance.
Defamation isn’t trivial and a person’s reputation is something the courts take very seriously. This is often reflected on very high awards from Circuit and High Court. If you or one of your employees have genuinely defamed somebody they will get an award and rightly so. That’s not what this article was about. It’s about protecting yourself and your organisation from the chancers, scammers, and liars who will file spurious claims to make a quick buck. You can take steps to protect yourself from these people so why don’t you. Invest in training, equipment and advice now to save money in the long term.