england-and-wales libel
False written accusations not made public - is there law to cover this?
<p>If a person makes a false accusation against me in written, but not a published form, such as email, is there a legal process I can enact which would force the accusing party to either retract the claim or prove it?</p>

<h2>posting using a dummy account to protect myself and all concerned.</h2>

<p>Background.</p>

<p>As the <a href="https://ico.org.uk/for-organisations/guide-to-data-protection/guide-to-the-general-data-protection-regulation-gdpr/accountability-and-governance/data-protection-officers/" rel="nofollow noreferrer">DPO</a> in my company, I'm handling the <a href="https://ico.org.uk/for-organisations/guide-to-data-protection/guide-to-the-general-data-protection-regulation-gdpr/individual-rights/right-of-access/" rel="nofollow noreferrer">SAR</a> of a former employee. It is a sensitive subject, as the employee has started process against the company against their treatment during their employment. To ensure data privacy, I've been in contact with the person by email to ensure they understand their rights under GDPR and explain why some data regarding other people is being redacted from the information requested. </p>

<p>In response, the person has insinuated that the information they received has been edited in a way which harms his defence in his case against the company. If this insinuation becomes an actual accusation, what legal recourse do I have on this? </p>

<p>If the accusation is printed publicly, libel laws would come into force. Since it is not public, I'm not sure if I am protected by law from this outright lie.</p>

<h2>Defamation requires communication to a third-party</h2>

<p>I can say (or write) anything I want about a person directly to that person and, unless it is a threat, they have no recourse at all. I can call them a liar, a thief, a Nazi, or a goat fornicator.</p>

<p>Of course, I have to be careful – calling them a “bastard” might be a slur on their mother communicated to a third-party (them) which would give her a right to sue although that would require a literal and largely archaic use of the term.</p>

<p>That said, you do need to check with your lawyer if you can redact names in the face of a subpoena - complying with a legal obligations is a legitimate use of personal data under GDPR.</p>

<p>Dale M's answer pretty much covers it, but it sounds like this is a case of misunderstanding by the former employee rather than an actionable accusation.</p>

<p>The way you have edited the documents will not harm his defence - if the details you removed are considered relevant, the court will order you to produce unedited documents.</p>

<p>At that point, reproducing the documents for court use will be considered a Lawful Basis for Processing covered by sub paragraph (c), paragraph 1, Article 6 of <a href="https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32016R0679&amp;from=EN" rel="noreferrer">2016/679</a>.</p>

<p>If you were to be publicly accused of harming his defence, you could demonstrate that this was untrue (since you would either have produced unedited documents as ordered, or they would have been deemed irrelevant by the court), but if you were to bring a civil action you would have to consider the amount of financial damages that had been suffered as a result of the accusation. If these are difficult to determine, any legal action you bring is unlikely to be successful.</p>

<p>People saying things like that is routine in legal proceedings.  It sounds like he's not so interested in defaming you as trying to challenge the data.  </p>

<p>The right to challenge the validity of data is the foundation of the British style legal system, and it's in America's <em>Constitution</em>.  Any judge in a civilized country should jealously protect that right.</p>

<p>Defamation requires a bunch of things. </p>

<ul>
<li>Defamation to you alone is not defamation.  If he thinks it, the damage is already done <em>there</em>.  If <em>you learn</em> he thinks it, well, are you a man or a mouse?  But when he communicates it to a third party -- then it becomes defamation.  Any third party, regardless of whether it's public or not. <strong>If he knew or reasonably should have known that the statement <em>will ultimately reach</em> a third party</strong>, that counts. </li>
<li>If your reputation is already mud, through no fault of that person's own, then they haven't damaged your reputation further. </li>
<li>Many jurisdictions require that the defamation you claim be <em>specific</em>, that is you must open your defamation suit by clearly identify a defaming statement, and generally aren't allowed to use subpoena and other discovery powers to go on a "fishing expedition" to try to find one. </li>
<li><strong>Legal proceedings are <em>special</em></strong>.  

<ul>
<li>Anything he says in a court document, that is not completely absurd (you killed JFK), is always protected and never defamation, unless it's so outrageous and improbable that the judge says otherwise. </li>
<li>Things he alleges in the legal process are also protected, e.g. if he asked an accountant in a deposition "If Joe embezzled, how could he have hidden it?" </li>
<li>Communication between himself and his legal counsel is protected. </li>
</ul></li>
</ul>

<p>So on anything relating to a legal proceeding, you will have a difficult time showing any defamation.  </p>

<p>Firstly, it's not clear to whom these comments have been made. Has the person made this complaint to your company? Your boss? Their own lawyer?</p>

<p>Secondly, I can find no support in a bit of Googling that a statement needs to be public to be defamatory. It would seem that it needs to be made to a third party. So if this person has told <em>you</em> that you're grossly incompetent, then that's not defamatory. But if they've told your boss, then it may be...<em>if</em> you suffer some harm from it. </p>

<p>But I propose we take a step back from this. This person wants some great amount of info, you've provided what you believe you're allowed to, and they say that's not enough. This sounds to me far more like a negotiation than an accusation; and even if they raise it to the status of a public complaint, it's against your company, not you.</p>

<p>I've had tangential involvement in what I believe to be the equivalent process in my own jurisdiction, and it would seem very strange to me that the task would fall to any one person, alone. I would expect this to be handled by a team that includes the organization's legal counsel (corporate or external), HR, and high management. And it's quite normal for a back-and-forth of "I want more" and "that's all we can give".</p>

<p>So you should definitely not be working on this alone.</p>

<p>The exact definition depends on jurisdiction, but generally, to be libel, something must be:</p>

<ol>
<li>A claim of fact</li>
<li>that is false</li>
<li>made to a third party</li>
<li>in a fixed medium</li>
<li>that harms the plaintiff</li>
</ol>

<p>Your question doesn't present a clear statement of fact or how it is false. When it comes to "You did X, and X hurts my defense", the first ("You did X") is a statement of fact, but the second ("X hurts my defense") is an opinion. If you disagree that you edited the response, that is a basis for a libel charge. But if you agree that you did indeed edit the response (as you seem to do), and are merely disagreeing with their claim that it hurts their defense, that's not a basis.</p>

<p>The third and fifth points are related: you can't sue someone unless they harmed you. If they present the claims to someone else, and that someone else acts on the claims in a manner that hurts you, that is a basis for damages.  But if you are the only audience for the claims, then there's no one else to be acting in a manner that hurts you. </p>

<p>Furthermore, it is your job to act in the best interests of your company, not of ex-employees. So merely asserting that you edited the response in a manner deleterious to the ex-employee is not defamatory; it does not harm your reputation, because having a reputation of putting the interests of your employer above former employees is a <em>good</em> thing to have. To show libel, you would have to have further claims, such as that you edited the response in a way prohibited by law, or there is something unethical about the editing.</p>

<p>As for the fourth item, "fixed medium" has generally meant "written", but in this electronic age, it's not as clear. A chat message would probably not be taken as "fixed medium", even though it's written, but an email probably would be considered fixed medium.</p>

<p>Also note that claims made in litigation are generally privileged. So if he says to the <em>judge</em> in the case that you edited the response in a way detrimental to him, you may not be able to sue him for libel, regardless of whether the points above hold.</p>
