Defamation Law in Gibraltar:
protecting big reputations in a small jurisdiction

Introduction

Gibraltar has a surface area of roughly 6.8 sq km and a population of approximately 40,000 people. Whilst it is a comparatively small jurisdiction geographically, it is home to many prominent industry-leading organisations with big reputations to protect in an increasingly interconnected world.

Gibraltar’s close-knit community also means that information can spread rapidly. Its defamation law regime offers a robust framework for individuals and entities seeking redress when false statements cause them harm. This area of law balances a person’s fundamental right to protection of freedom of expression with the equally crucial right to safeguard another’s reputation and private lives as enshrined in Sections 10 and 7 of Gibraltar’s Constitution.

Defamation, a civil wrong, encompasses libel (permanent forms like writing or broadcasts) and slander (transient forms like spoken words). Gibraltar’s Defamation Act 1960 applies broadly to words and other methods of signifying meaning (e.g. visual or sound), ensuring a unified approach to contemporary communication. Reforms introduced in England & Wales, such as (a) shortening the limitation period from six years to one year, (b) the abolishment of jury trials and (c) the introduction of the “serious harm” test and codification of truth, honest opinion, public interest and other defences under the Defamation Act 2013, have not been implemented in Gibraltar.

Establishing a Defamation Claim

To successfully bring a defamation claim in Gibraltar, a claimant must prove three core elements:

• Publication to a third person: the defamatory statement or “words” must have been communicated to at least one individual other than the claimant.
• Reference to and identification of the claimant: the “words” must clearly refer to and be understood to refer to the claimant.
• Defamatory meaning: the “words” must “lower the claimant in the estimation of right-thinking members of society generally,” according to the test established in Sim v Stretch [1936] 2 All ER 1237, 1239 (HL).

Whilst in England and Wales, a claimant is required to prove that a statement caused or is likely to cause them serious reputational harm (or, in the case of corporate claimants, serious financial loss), this statutory “serious harm” test is not applied in Gibraltar.

It is also important to note that in Gibraltar, the falsity of a statement is presumed, and consequently, the burden of proving the truth of the statement falls entirely upon the defendant or respondent.

Key Defences to Defamation Claims

Defendants in defamation actions in Gibraltar can potentially rely on  various common law and statutory defences in respect of an allegedly defamatory statement, including:

• Justification: This is the defence of proving the statement is substantially true.
• Honest Comment: This defence is established when the statement is a genuine opinion based on proven facts.
• Absolute Privilege: This defence provides complete immunity for fair and accurate reports of court proceedings within Gibraltar and parliamentary publications.
• Qualified Privilege: This defence applies when there is a duty or interest to publish and receive information, provided there is no malice. This includes statutory provisions protecting newspapers and common law public interest defences.
• Unintentional Defamation/Offer of Amends: This is a statutory defence that allows a publisher to offer a suitable correction and apology if the publication was innocent, potentially preventing or defending against proceedings.
• Publication Without Malice or Gross Negligence with Apology: This defence is specific to newspapers and requires proof of no malice or gross negligence, a full apology, and payment into court.

Remedies Available for Defamation

Successful claimants can be awarded remedies aimed at compensation and prevention:

• Damages: To redress harm to reputation, compensate for injury to feelings and vindicate the claimant’s reputation. These can include general, special (quantifiable financial loss), aggravated (for egregious conduct), and exemplary (punitive, in exceptional cases) damages. A timely and sincere apology can reduce the damages awarded.
• Injunctive Relief: These are court orders prohibiting further publication, and are usually ordered in conjunction with a damages award (provided that they are capable of being enforced and would not therefore be in vain).

Defamation in the Digital Age

The increasing use of the internet and social media has introduced new complexities in defamation claims:

• Social media enables instant and widespread dissemination that makes it challenging to quantify the full extent of publication for damages assessment.
• Cross-border online defamation may lead to disputes as to which jurisdiction’s courts have authority and laws apply. Cases such as F Picardo v Agustin Rosety Fernandez de Castro highlight the emphasis on proving harm within Gibraltar’s jurisdiction.
• Gibraltar’s Electronic Commerce Act 2001 exempts intermediaries from liability unless they have actual knowledge of unlawful content and fail to act promptly. This applies specifically to a service provider that has a fixed and continuing establishment in Gibraltar and provides an electronic service at a distance at the individual request of the recipient.

Gibraltar’s Distinct Legal Position 

Gibraltar’s defamation law is distinct from the law in England and Wales as follows:

• Unlike in England and Wales, where trials will be conducted without a jury unless the court orders otherwise, Gibraltar retains the common law right to a jury trial in defamation cases, a right affirmed by the Supreme Court in the case of Allen and Wood v Panorama Limited and Olivero [2021 Gib LR 271].
• As referenced above, whilst claimants in England and Wales need to prove that a defamatory statement caused or is likely to cause them ‘serious harm’ (and, in the case of corporate claimants, ‘serious financial loss’), claimants in Gibraltar do not need to demonstrate the same when initiating a claim.
• In Gibraltar, a six-year limitation period remains in effect for defamation claims as opposed to the one-year limitation period in England and Wales.

Gibraltar’s defamation law offers a robust and unique framework for protecting reputation in a modern digital world. Its distinct features set it apart from other jurisdictions, particularly England and Wales, and is well-suited to protecting the big reputations of prominent organisations and individuals in a small, close-knit jurisdiction where information can spread rapidly.

Julian Santos – Barrister at 5RB Chambers 

Nicholas Borge – Director at Ramparts