Slander and libel

In British and American law, as well as other legislative systems based thereon, libel and slander are two forms of defamation (of character). Defamation is defined to be the tort or delict of "...publication of a false statement of fact, made with the requisite state of mind, that causes injury"http://writ.news.findlaw.com/hilden/20060117.html.

"Defamation" is the general term used internationally, and is used in this article where it is not necessary to distinguish between "libel" and "slander". Libel is defamation that is published, but can also happen in other forms, such as effigy, a motion picture, or a statue; slander refers to any verbal, unpublished, defamation.

Vocabulary and general concepts

"Libel" comes from Latin : libellus ("little book")
Even if a statement is derogatory, there are circumstances in which such statements are permissible in law.

Truth

In many, though not all, legal systems, statements presented as fact must be false to be defamatory. Proving to be true is often the best defense against a prosecution for libel. Statements of opinion which cannot be proven true or false will likely need to apply some other kind of defense.

In some systems, however, truth alone is not a defense. It is also necessary in these cases to show that there is a well founded public interest in the specific information being widely known, and this may be the case even for public figures.

Privilege and Malice

Almost all legal systems, including those of the United States,Scotland, and England and Wales, require in some situations that the subject of the communication prove, in a civil court, that the defendant made the statement with "malice", meaning either believing it was false or with "reckless disregard" for whether it was false. This is known as "qualified privilege"; a typical example is a complaint of professional misconduct. "Absolute privilege" has the effect that a statement cannot be sued on as defamatory, even if it was made maliciously; a typical example is evidence given by a witness on oath (although this may give rise to different claims, such as an action for malicious prosecution or perjury) or statements made in a session of the legislature (known as 'Parliamentary privilege' in Commonwealth countries).

Similar but different delicts and torts

Some jurisdictions have a separate tort or delict of "verbal injury" or "convicium" involving the making of a statement, even if truthful, designed to harm the claimant out of malice; some have a separate tort or delict of "invasion of privacy" in which the making of a true statement may give rise to liability: but neither of these comes under the general heading of "defamation". Some jurisdictions also have the tort of "false light", in which a statement may be technically true, but so misleading as to be defamatory. There is also, in almost all jurisdictions, a tort or delict of "misrepresentation", involving the making of a statement which is untrue even though not defamatory; thus if a surveyor states that a house is free from the risk of flooding, he or she has not defamed anyone, but may still be liable to someone who purchases the house in reliance on this statement.

Criminal libel

Many nations have criminal penalties for defamation in some situations, and different conditions for determining whether an offense has occurred. Thus, for example, in Zimbabwe "insulting the President" is by statute (Public Order and Security Act 2001) a criminal offence. In European systems, criminal liability for defamation is virtually obsolete by reason of the freedom of expression provisions of Article 10 of the European Convention on Human Rights. An important example is Lingens v. Austria (1986) 8 E.H.R.R. 407. Lingens was fined for publishing in a Vienna magazine comments about the behaviour of the Austrian Chancellor, such as 'basest opportunism', 'immoral' and 'undignified'. Under the Austrian criminal code the only defence was proof of the truth of these statements. Lingens could not prove the truth of these value judgments. The European Court of Human Rights stated that a careful distinction needed to be made between facts and value judgments/opinions. The existence of facts can be demonstrated, whereas the truth of value judgments is not susceptible of proof. The facts on which Lingens founded his value judgments were not disputed; nor was his good faith. Since it was impossible to prove the truth of value judgments, the requirement of the relevant provisions of the Austrian criminal code was impossible of fulfilment and infringed article 10 of the Convention.

Origins of defamation law

In most early systems of law verbal defamations were treated as a criminal or quasi-criminal offence, its essence lying not in pecuniary loss, which may be compensated by damages, but in the personal insult which must be atoned for: a vindictive penalty coming in the place of personal revenge. By the law of the Twelve Tables, the composition of scurrilous songs and gross noisy public affronts were punished by death. Minor offences of the same class seem to have found their place under the general conception of injuria, which included ultimately every form of direct personal aggression which involved abuse or insult.

In the later Roman jurisprudence, from which many of modern laws descend, verbal defamations are dealt with in the edict under two heads. The first comprehended defamatory and injurious statements made in a public manner (convicium contra bonos mores). In this case the essence of the offence lay in the unwarrantable public proclamation. In such a case the truth of the statements was no justification for the unnecessarily public and insulting manner in which they had been made. The second head included defamatory statements made in private, and in this case the offence lay in the imputation itself, not in the manner of its publication. The truth was therefore a sufficient defence, for no man had a right to demand legal protection for a false reputation. Even belief in the truth was enough, because it took away the intention which was essential to the notion of injuria.

The law thus aimed at giving sufficient scope for the discussion of a man's character, while it protected him from needless insult and pain. The remedy for verbal defamation was long confined to a civil action for a monetary penalty, which was estimated according to the significance of the case, and which, although vindictive in its character, doubtless included practically the element of compensation. But a new remedy was introduced with the extension of the criminal law, under which many kinds of defamation were punished with great severity. At the same time increased importance attached to the publication of defamatory books and writings, the libri or libelli famosi, from which we derive our modern use of the word libel; and under the later emperors the latter term came to be specially applied to anonymous accusations or pasquils, the dissemination of which was regarded as particularly dangerous, and visited with very severe punishment, whether the matter contained in them were true or false.

English law

Development of English defamation law

Modern libel and slander laws as implemented in many but not all Commonwealth nations, in the United States, and in the Republic of Ireland, are originally descended from English defamation law.

The earlier history of the English law of defamation is somewhat obscure. Civil actions for damages seem to have been tolerably frequent so far back as the reign of Edward I (1272–1307). There was no distinction drawn between words written and spoken. When no pecuniary penalty was involved such cases fell within the old jurisdiction of the ecclesiastical courts, which were only finally abolished in the eighth century. It seems, to say the least, uncertain whether any generally applicable criminal process was in use.

The crime of scandalum magnatum, spreading false reports about the magnates of the realm, was established by statutes, but the first fully reported case in which libel is affirmed generally to be punishable at common law is one tried in the Star Chamber in the reign of James I. In that case no English authorities are cited except a previous case of the same nature before the same tribunal; the law and terminology appear to be taken directly from Roman sources, with the insertion that libels tended to a breach of the peace; and it seems probable that not very scrupulous tribunal had simply found it convenient to adopt the very stringent Roman provisions regarding the libelli famosi without paying any regard to the Roman limitations. From that time we find both the criminal and civil remedies in full operation.

English Admiralty law

In admiralty law, a libel was the equivalent of a civil lawsuit. The plaintiff was referred to as the "libellant". The verb "to libel" means "to sue admiralty". Similar terminology was used in the United States legal system. The term has been rendered obsolete by the merger of the admiralty courts with tribunals of general jurisdiction and the adoption of simplified rules of civil procedure that specify "one form of action" for all claims.

Modern law

English law allows actions for libel to be brought in the High Court for any published statements which defame a named or identifiable individual or individuals in a manner which causes them loss in their trade or profession, or causes a reasonable person to think worse of him, her or them.

A statement can include an implication. A large photograph of Tony Blair above a headline saying "Corrupt Politicians" might be held to be an allegation that Tony Blair was personally corrupt.

The allowable defences against libel are:

Justification: the defendant proves that the statement was true. If the defence fails, a court may treat any material produced by the defence to substantiate it, and any ensuing media coverage, as factors aggravating the libel and increasing the damages.
Fair Comment: the defendant shows that the statement was a view that a reasonable person could have held, even if they were motivated by dislike or hatred of the plaintiff.
Privilege: the defendant's comments were made in Parliament or under oath in court of law or were an accurate and neutral report of such comments. There is also a defence of 'qualified privilege' under which people, who are not acting out of malice, may claim privilege for fair reporting of allegations which if true were in the public interest to be published. The leading modern English case on qualified privilege in the context of newspaper articles which are claimed to defame a public figure is now Reynolds v. Times Newspapers Ltd and Others, 1999 UKHL 45.

An offer of amends - typically a combination of correction, apology and/or financial compensation - is a barrier to litigation in the courts.

Burden of Proof on the Plaintiff

In most legal systems the courts give the benefit of the doubt to people being tried. They are presumed innocent until the prosecution can prove guilt beyond a reasonable doubt (in criminal law), or the plaintiff can show liability on a balance of probabilities (in civil law). However, at first glance, this burden of proof, in defamation laws - in some countries' legal systems, e.g. in the UK and Australia - seems to be reversed. In other countries, e.g. the USA, the burden of proof is on the accuser, consistent with other laws.

In systems where the burden of proof is said to be reversed, once the plaintiff meets the burden of proof that the publisher made the allegedly defamatory statement, the untruth of that statement is then presumed — the innocence of the person allegedly defamed is presumed, rather than the innocence of the person allegedly defaming.

So the burden of proof falls onto the defendant in the case, which can be called a reversal of the burden of proof.

The English laws on libel have traditionally favored the plaintiffs. A recent decision by the European Court of Human Rights (in the so-called "McLibel case") held that, on the (exceptional) facts of that case, the burden on the defendants in the English courts was too high. However, it is unlikely that the case will provoke any considerable change in substantive English law, despite strong academic criticism of the current position. ^*

In 1990, McDonald's Restaurants sued Morris & Steel (called the McLibel case) for libel. The original case lasted seven years, making it the longest-running court action in English history. Beginning in 1986, London Greenpeace, a small environmental campaigning group, distributed a pamphlet entitled What’s wrong with McDonald’s: Everything they don’t want you to know. The pamphlet claimed that the McDonald's corporation sells unhealthy food, exploits its work force, practices unethical marketing of its products towards children, is cruel to animals, needlessly uses up resources and creates pollution with its packaging and is responsible for destroying the South American rain forests. Although McDonald's won two hearings, the widespread public opinion against them turned the case into a matter of embarrassment for the company. McDonald's announced that it has no plans to collect the £40,000 it was awarded by the courts, and offered to pay the defendants to drop the case. Since then, certain aspects of the trial have been declared by the European Court of Human Rights to be in violation of the Convention on Human Rights.

United States law

Defamation law in the United States is much less plaintiff-friendly than its counterparts in European and the Commonwealth countries.

This is because the First Amendment to the Constitution of the United States gives strong protection to freedom of expression, which arose from the tradition of dissent in the American Revolution. One very important distinction today is that European and Commonwealth jurisdictions adhere to a theory that every publication of a defamation gives rise to a separate claim, so that a defamation on the Internet could be sued on in any country in which it was read, while American law only allows one claim for the primary publication.

In the United States, about 75 percent of defamation lawsuits are filed in state courts, and the remaining 25 percent in federal courts. A comprehensive discussion of what is and is not libel or slander is difficult, because each state's definition differs. Some states codify what constitutes slander and libel together into the same set of laws. Some states have criminal libel laws on the books, though these are old laws which are very infrequently prosecuted.

Most defendants in libel lawsuits are newspapers, which are involved in about twice as many lawsuits as are television stations. Most plaintiffs are corporations, businesspeople, entertainers and other public figures, and people involved in criminal cases, usually defendants or convicts but sometimes victims as well. Almost all states do not allow defamation lawsuits to be filed if the allegedly defamed person is deceased. No state allows the plaintiff to be a group of people.

In the various states, whether by case law or actual legislation, there are generally several "privileges" that can get a defamation case dismissed without proceeding to trial. These include the allegedly defamatory statement being one of opinion rather than fact; or being "fair comment and criticism", as it is important to society that everyone be able to comment on matters of public interest. In addition, it is generally accepted in the United States that a sufficiently public figure is "fair game" for all but the grossest libels.

Defences

Defences to claims of defamation include:

Truth is an absolute defense in the United States because of the First Amendment to the United States Constitution. In some other countries, such as Canada, it is also necessary to show a benefit to the public good in having the information brought to light.
Statements made in a good faith and reasonable belief that they were true are generally treated the same as true statements; however, the court may inquire into the reasonableness of the belief. The degree of care expected will vary with the nature of the defendant: an ordinary person might safely rely on a single newspaper report, while the newspaper would be expected to carefully check multiple sources.
Privilege is a defence when witness testimony, attorneys' arguments, and judges' decisions, rulings, and statements made in court, or statements by legislators on the floor of the legislature, are the cause for the claim. These statements are said to be privileged and cannot be cause for a defamation claim.
Opinion is a defense recognized in nearly every jurisdiction. If the person makes a statement of opinion rather than a statement of fact, defamation claims usually cannot be brought because opinions are inherently not falsifiable. Some jurisdictions have eliminated the distinction between fact and opinion, and allow any statements suggesting a factual basis to support a defamation claim.
Fair comment on a matter of public interest, statements made with an honest belief in their truth on a matter of public interest (official acts) are defenses to a defamation claim, even if such arguments are logically unsound; if a reasonable person could honestly entertain such an opinion, the statement is protected.
Consent is an uncommon defence and makes the claim that the claimant consented to the dissemination of the statement.
Innocent dissemination is a defence available when a defendant had no actual knowledge of the defamatory statement or no reason to believe the statement was defamatory. The defence can be defeated if the lack of knowledge was due to negligence. Thus, a delivery service cannot be held liable for delivering a sealed defamatory letter.
Claimant is incapable of further defamation–e.g., the claimants' position in the community is so poor that even if the statement was defamatory there can be not actual damage to the plaintiff, failing the fourth requirement for a justified libel claim. These claimants' are "libel-proof."

In addition to the above, the defendant may claim that the allegedly defamatory statement is not actually capable of being defamatory—an insulting statement that does not actually harm someone's reputation is prima facie not libelous.

Special rules apply in the case of statements made in the press concerning public figures. A series of court rulings led by New York Times Co. v. Sullivan, 376 U.S. 254 (1964) established that for public official (or other legitimate public figure) to win a libel case, the statement must have been published knowing it to be false (also known as actual malice) or with a reckless disregard to its truth.

Under United States law, libel generally requires five key elements. The plaintiff must prove that the information was published, the defendant was directly or indirectly identified, the remarks were defamatory towards the plaintiff's reputation, the published information is false, and that the defendant is at fault.

The Associated Press estimates that 95% of libel cases involving news stories do not arise from high-profile news stories, but "run of the mill" local stories like news coverage of local criminal investigations or trials, or business profiles. Media liability insurance is available to newspapers to cover potential damage awards from libel lawsuits.

Defamation per se

All states except Arizona, Arkansas, Mississippi, Missouri, Oregon, and Tennessee recognize some categories of statements are considered to be defamatory per se, traditionally:

In states that recognize defamation per se, people making a defamation claim for certain statements do not need to prove that the statement was defamatory:

Allegations or imputations "injurious to another in their trade, business, or profession"
Allegations or imputations "of loathsome disease" (historically leprosy and sexually-transmitted disease, now also including mental illness)
Allegations or imputations of "unchastity" (usually only in unmarried people and sometimes only in women)
Allegations or imputations of criminal activity (sometimes only crimes of moral turpitude) ^*

History

Laws regulating slander and libel in the United States began to develop even before the American Revolution. In one of the most famous cases, New York publisher John Peter Zenger was imprisoned for 8 months in 1734 for printing attacks on the governor of the colony. Zenger won his case and was acquitted by jury in 1735 under the counsel of Andrew Hamilton. The case established some precedent that the truth should be an absolute defense against libel charges. Previous English defamation law had not provided this guarantee. This impacted the later formers of the U.S. constitution, including Gouverneur Morris, who said

The trial of Zenger in 1735 was the germ of American freedom, the morning star of that liberty which subsequently revolutionized America.

Zenger's case also established that libel cases, though they were civil rather than criminal cases, could be heard by a jury, which would have the authority to rule on the allegations and to set the amount of monetary damages awarded.

Although the First Amendment of the U.S. Constitution was designed specifically to protect freedom of the press, the Supreme Court long neglected to use it to rule on libel cases, leaving libel laws mixed across the states. In 1964, however, the court issued an opinion in New York Times Co. v. Sullivan, dramatically changing the nature of libel law in the United States. In that case, the court determined that public officials could only win a suit for libel if they could demonstrate "actual malice" on the part of reporters or publishers. In that case, "actual malice" was defined as "knowledge that the information was false" or that it was published "with reckless disregard of whether it was false or not." This decision was later extended to cover "public figures", although the standard is still considerably lower in the case of private individuals.

In 1974, in Gertz v. Robert Welch, Inc., (418 U.S. 323), the Supreme Court ruled that a plaintiff could not win a libel suit when the statement(s) in question were of opinion rather than fact. In the words of the court, "under the First Amendment, there is no such thing as a false idea". For example, contrast "I think Jo is a bad lawyer", which is opinion, with "Jo doesn't know the law", which is defamatory per se. In Gertz, the Supreme Court also established a mens rea or culpability requirement for defamation; states cannot impose strict liability because that would run afoul of the First Amendment. This holding differs significantly from most other common law jurisdictions, which still have strict liability for defamation.

In 1988, in Hustler Magazine v. Falwell, (485 U.S. 46), the Supreme Court ruled that a parody advertisement claiming Jerry Falwell had engaged in an incestuous act with his mother in an outhouse, while false, could not allow Falwell to win damages for emotional distress because the statement was so obviously ridiculous that it was clearly not true; an allegation believed by nobody, it was ruled, brought no liability upon the author. The court thus overturned a lower court's upholding of an award where the jury had decided against the claim of libel but had awarded damages for emotional distress.

Australian law

Australian law tends to follow English law on defamation issues, although there are differences introduced by statute, and by an implied constitutional limitation on governmental powers to limit speech of a political nature.

A recent judgment of the High Court of Australia has significant consequences on interpretation of the law. On 10 December, 2002, the High Court of Australia handed down its judgment in the Internet defamation dispute in the case of Gutnick v Dow Jones. The judgment, which established that Internet-published foreign publications which defamed an Australian in his Australian reputation could be held accountable under Australian libel law, has gained worldwide attention and is often (although inaccurately, see for example Berezovsky v Forbes in England) said to be the first of its kind; the case was subsequently settled.

Among the various common law jurisdictions, some Americans have presented a visceral and vocal reaction to the Gutnick decision. It has been suggested that both the broad assertion of personal jurisdiction by Australia (which has a similar personal jurisdiction rule to most jurisdictions) and the underlying imposition of strict liability for defamation run counter to notions of fairness and due process that Americans consider to be fundamental aspects of their system of justice. On the other hand, the decision, which mirrors similar decisions in many other jurisdictions such as England, Scotland, France, and Italy, has been defended on the basis that those who choose to publish worldwide cannot complain if they are sued worldwide; and the existence of pro-defender defamation laws in America does not give Americans a licence to be free of the laws of other countries.

Canadian law

As with most Commonwealth jurisdictions, Canada also follows English law on defamation issues (although the law in the province of Quebec has different roots). At common law, defamation covers any communication that objectively lowers the esteem of the subject in the minds of the ordinary members of the public (Murphy v. LaMarsh (1970), 73 W.W.R. 114). The perspective measuring the esteem is highly contextual. Generally, it is the view of the potential audience of the communication.

Where a communication is expressing a fact, it can still be found defamatory through innuendo suggested by the juxtoposition of the text or picture next to other pictures and words. (see Brown, The Law of Defamation in Canada, 2nd ed. (Scarborough, Ont.: Carswell, 1994) vol. 1 at 201).

In the Supreme Court of Canada decision of Hill v. Church of Scientology of Toronto (1995) the Court reviewed the relationship of the common law of defamation and the Charter. The Court rejected the actual malice test in New York Times Co. v. Sullivan citing criticism of it, not only in the United States, but in other countries as well.

Criminal defamation

Defamation as a tort does not infringe the freedom of expression guarantee under the Canadian Charter of Rights and Freedoms, according to the Nova Scotia Supreme Court in Coates v. The Citizen (1988), 44 C.C.L.T. 286 (N.S.S.C.). Defamatory libel as a criminal offence under the Criminal Code is equally valid, according to the Supreme Court of Canada: R. v. Lucas, ^* 1 S.C.R. 439.

External links

FindLaw's Writ - Hilden: The Slipperiness of Slander...
Resources on defamation and freedom of expression - ARTICLE 19
Defamation and intellectual property jurisdiction A Scottish site, dealing with jurisdiction in international defamation cases, with copious references to caselaw in many countries.
Newsdesk Introduction to English defamation law.
Human Rights Update English site, with notes of recent cases in which the Human Rights Convention has affected defamation law in Europe.
Richard Kostelanetz article on libel and chilling effects
Defining Defamation: Principles on Freedom of Expression and Protection of Reputation - ARTICLE 19
World Press Freedom Committee campaign against insult laws
Criminal defamation cases documented by the Committee to Protect Journalists
Electronic Frontiers Foundation's Bloggers' FAQ - Student Blogging

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