Sun BrandThe comedian and actor Russell Brand has threatened to take legal action over an article published on the front page of the Sun which alleged that he was a “hypocrite” because of his housing arrangements.  In this short article, we take a look at whether in principle calling somebody a “hypocrite” could give rise to a claim.

In basic terms, the law of defamation is all about deterring and remedying unwarranted damage to reputation. Words are defamatory when they cause serious harm to reputation.  What amounts to serious harm will fall to be decided on a case-by-case basis and what is said must serve to undermine reputation in the eyes of right-thinking members of society generally.

So, is alleging that someone is a “hypocrite” defamatory?  The courts have held in previous cases that it is defamatory to publish an allegation that a person is a hypocrite but each case is decided on its own facts and Mr Brand must satisfy the court that the allegation has caused serious harm to his reputation.  If the Sun were to resist any claim brought against it by Mr Brand, it would need to demonstrate that either the allegation is not defamatory or that it can rely on a defence such as that of truth (that the statement is substantially true), honest opinion (that the statement is an opinion, based on true facts, which an honest person could hold), or that it was a publication on a matter of public interest.

On the other hand, if the Sun were to decide to issue an apology, Mr Brand would need to carefully mitigate his loss and ensure that any refusal to accept an apology was reasonable. Indeed, in the case of Mawdsley v. Guardian Newspapers Ltd ([2002] EWHC 1780 (QB)) human rights activist, James Mawdsley, brought an action over an article which was published in the Guardian which alleged that he was a hypocrite who cared little for the effects of his activities.  In that case, the newspaper accepted a defamation and negotiated with Mr Mawdsley over the terms of an apology; however, no agreement could be reached and the issue went to court.  In that case, the court found that Mr Mawdsley had failed to mitigate his loss by his unreasonable rejection of the apologies that had been offered and by his refusal to allow the publication of an apology.

The existing case law should therefore serve as a warning to both the Sun and Mr Brand.  Although any claim brought by Mr Brand will fall to be decided on its own facts, an allegation that someone is a “hypocrite” has already been considered capable of being defamatory in other cases; however, if an apology were to be offered, Mr Brand would need to take care that he did not unreasonably reject it.

It remains to be seen whether Mr Brand will indeed bring a claim against the Sun regarding its allegation that he is a “hypocrite” but responded with this tweet

Hey , I’m gonna sue you and give the money to and JFT96

This post originally appeared on the Brabners blog and is reproduced with permission and thanks