Defamation

In law, defamation is the communication of a statement that makes a false claim, expressly stated or implied to be factual, that may harm the reputation of an individual, business, product, group, government, or nation. The common law origins of defamation lie in the torts of slander (harmful statement in a transitory form, especially speech) and libel (harmful statement in a fixed medium, especially writing but also a picture, sign, or electronic broadcast), each of which gives a common law right of action. Most jurisdictions allow legal actions, civil and/or criminal, to deter various kinds of defamation and retaliate against criticism.

The legal requirements of proving defamation are often difficult to satisfy, since the accusation must be shown to be false and to lead to a loss of reputation. Nevertheless, defamation is punishable, in historical cases rather severely. Causing deliberate harm to the reputation of another can indeed be a serious matter. Human beings are essentially social beings, living in a world of relationships with one another. Loss of reputation puts one in a situation where all others question whether they will continue any relationship. This can be devastating. Thus, defamation is a serious matter and efforts to prevent its occurrence are necessary for the harmonious functioning of society and the protection of all its members.

Definition

Defamation is the general term used internationally, and is used in this article where it is not necessary to distinguish between "slander" and "libel." "Libel" comes from the Latin libellus ("little book")^[1]

The word slander comes from the French esclandre, meaning scandalous statement. Esclandre, in turn, is derived from the Latin scandalum, meaning cause of offense.^[2]

Libel and slander both require publication. The fundamental distinction between libel and slander lies solely in the form in which the defamatory matter is published. If the offending material is published in some fleeting form, as by spoken words or sounds, sign language, gestures, and the like, then this is slander. If it is published in more durable form, for example in written words, film, compact disc, and so on, then it is considered libel.

History

In most early systems of law, verbal defamations were treated as a criminal or quasi-criminal offense, 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 ancient legislation that stood at the foundation of Roman law) the composition of scurrilous songs and gross noisy public affronts were punished by death. Minor offenses 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.

Religions also warn against a malicious tongue.^[3] Such admonitions have formed cultural if not legal norms. For example, Islamic teachings warn against slander:

You who believe, if some perverse man should come up to you with some piece of news, clear up the facts lest you afflict some folk out of ignorance and some morning feel regretful for what you may have done. … Do not spy on one another, nor yet any of you slander others. Would one of you like to eat his dead brother's flesh? You would loathe it! Heed God, for God is Relenting, Merciful. Qur'an 49.6-12

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 offense 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 offense lay in the imputation itself, not in the manner of its publication. The truth was therefore a sufficient defense, 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.

Criminal libel

Many nations have criminal penalties for defamation in some situations, and different conditions for determining whether an offense has occurred. The law is used predominantly to defend political leaders or functionaries of the state. In Britain, the Italian anarchist Errico Malatesta was convicted of criminal libel for denouncing the Italian state agent Ennio Belelli in 1912.^[4] While, in Canada, though the law was applied on only six occasions in the twentieth century, all of those cases involve libellants attached to the state (police officers, judges, prison guards). In one case, Bradley Waugh and Ravin Gill were charged with criminal libel for publicly accusing six prison guards of the racially motivated murder of a black inmate.^[5] In Zimbabwe, "insulting the President" is, by statute, (Public Order and Security Act 2001) a criminal offense.

At trial

Burden of proof on the defendant

In most common law systems the courts give the benefit of the doubt to the defendant. In criminal law, he or she is presumed innocent until the prosecution can prove guilt beyond a reasonable doubt; whereas in civil law, he or she is presumed innocent until the plaintiff can show liability on a balance of probabilities. However, the common law of libel contains a kind of reverse-onus feature: A defamatory statement is presumed to be false unless the defendant can prove its truth. In New York Times v Sullivan (376 U.S. 254, 84 S.Ct. 710 (1964)), the United States Supreme Court changed this traditional feature of the common law with respect to public figures, and ruled that in cases where a public figure was libeled the burden of proof would be on the libeled person (the plaintiff). Furthermore, to collect compensatory damages, a public official or public figure must prove actual malice (knowing falsity or reckless disregard for the truth). A private individual must only prove negligence (not using due care) to collect compensatory damages. In order to collect punitive damages, all individuals must prove actual malice. The definition of "public figure" has varied over the years.

The English laws on libel have traditionally favored the plaintiffs. A 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. In 1990, McDonald's Restaurants sued Morris & Steel (called the McLibel case) for libel.^[6] 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. It is unlikely that the case will provoke any considerable change in substantive English law, despite strong academic criticism of the current position.

Defenses

Defenses to claims of defamation include:

• Truth is an absolute defense in the United States as well as in Canada (with the exception of Quebec). In some other countries it is also necessary to show a benefit to the public good in having the information brought to light.
• Mistake of fact—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 defense when witness testimony, attorneys' arguments, and judges' decisions, rulings, and statements made in court, or statements by legislators on the floor of the legislature, or statements made by a person to their spouse, 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 allegedly defamatory assertion is an expression of opinion rather than a statement of fact, defamation claims usually cannot be brought because opinions are inherently not falsifiable. However, some jurisdictions decline to recognize any legal distinction between fact and opinion. The United States Supreme Court, in particular, has ruled that the First Amendment does not require recognition of an opinion privilege.
• 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 defense and makes the claim that the claimant consented to the dissemination of the statement.
• Innocent dissemination is a defense available when a defendant had no actual knowledge of the defamatory statement or no reason to believe the statement was defamatory. The defense 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"—the claimant's position in the community is so poor that defamation could not do further damage to the plaintiff. Such a claimant could be said to be "libel-proof," since in most jurisdictions, actual damage is an essential element for a libel claim.

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.

Around the world

Australia

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 December 10, 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 that 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.^[7]

Among the various common law jurisdictions, some Americans have presented a visceral and vocal reaction to the Gutnick decision.^[8] On the other hand, the decision mirrors similar decisions in many other jurisdictions such as England, Scotland, France, Canada, and Italy.

Canada

As with most Commonwealth jurisdictions, Canada also follows English law on defamation issues (although the law in the province of Quebec has roots in both the English and the French tradition). At common law, defamation covers any communication that tends to lower the esteem of the subject in the minds of ordinary members of the public.^[9] The perspective measuring the esteem is highly contextual, and depends on the view of the potential audience of the communication and their degree of background knowledge. Probably true statements are not excluded, nor are political opinions. Intent is always presumed, and it is not necessary to prove that the defendant intended to defame.

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. They held that the guarantee of freedom of expression in the Canadian Charter of Rights and Freedoms did not require any significant changes to the common law of libel. This view came under extreme criticism following threats by then Prime Minister Paul Martin against then Leader of the Opposition Stephen Harper for calling the former's ruling Liberal Party of Canada a form of "organized crime." No suit was filed, but the use of the law to intimidate political opponents on the eve of an election was evidently unacceptable to the public, as they elected Harper Prime Minister instead.

Where a communication is expressing a fact, it can still be found defamatory through innuendo suggested by the juxtaposition of the text or picture next to other pictures and words.^[10]

Once a claim has been made out, the defendant may avail him or herself to a defense of justification (the truth), fair comment, or privilege. Publishers of defamatory comments may also use the defense of innocent dissemination where they had no knowledge of the nature of the statement, it was not brought to their attention, and they were not negligent.

In Quebec, defamation was originally grounded in the law inherited from France. After Quebec, then called New France, became part of the British Empire, the French civil law was preserved. However, by the mid-nineteenth century, judges in what by then had come to be called Lower Canada held that principles of freedom of expression inherent in the unwritten British Constitution over-rode French civil law in matters of public interest, and incorporated various defenses of the English common law, such as the defense of fair comment, into the local law. Such references to British law became more problematic in the twentieth century, with some judges and academics arguing that the basic principles of the civil law gave rise to similar defenses without need to refer to English case law or principle.^[11]

Most recently (as of 1997), the Supreme Court of Canada has held that defamation in Quebec must be governed by a reasonableness standard, as opposed to the strict liability standard that is applicable in the English common law; a defendant who made a false statement would not be held liable if it was reasonable to believe the statement was true.^[11] Although this seemed in theory to be a standard more tolerant of freedom of expression, it seems to have had the opposite effect, and defendants have been found liable for strictly truthful statements that could be considered unreasonable because they do not, for example, provide a full and fair context for the statements.

England

English law allows actions for libel to be brought in the High Court for any published statements which are alleged to 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 defenses against libel are:

• Justification: The defendant proves that the statement was true. If the defense fails, a court may treat any material produced by the defense 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 defense 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,^[12] and the privilege has been widened by Jameel v. Wall Street Journal Europe 2006 UKHL 44, which has been described as giving British newspapers protections similar to the U.S. First Amendment.^[13]

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

The 2006 case of Keith-Smith v Williams confirmed that discussions on the Internet were public enough for libel to take place.^[14]

Scotland

In Scottish law, as in other jurisdictions which base themselves on the civil law tradition, there is no distinction between libel and slander, and all cases are simply defamation. The equivalent of the defense of justification is "veritas."

Singapore

Singapore has perhaps the world's strongest libel laws. The country's leaders have clearly indicated to the public that libel on the Internet will not be tolerated and abusers will be severely punished. On March 6, 1996, the government made providers and publishers liable for the content placed on the Internet. Even the owners of cybercafes may be held liable for libelous statements posted or possibly viewed in their establishments.^[15]

In 2001, a Singapore bank was fined $2 million for accidentally publishing a mildly libelous statement during the heated discussion of a takeover bid. The mistake was corrected very quickly, and there was no intent to do harm. In fact, it was reported that no harm seems to have been done. Nevertheless, the offended parties were awarded $1 million each. Apparently confirming the stringency of Singapore’s defamation law, Business Times declined to report on the matter because one of the libeled parties objected.^[16]

United States

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. For most of the history of the United States, constitutional protections of freedom of speech had no impact on the traditional common law of defamation inherited from the English legal system. This changed with the landmark 1964 case of New York Times v. Sullivan, in which the Supreme Court of the United States announced constitutional restrictions to state defamation law. The court held that where a public official was defamed, the plaintiff had to prove not just that an untruthful statement was made, but also that it was made with "actual malice"—that is, with knowledge of falsity or with reckless disregard for the truth. The "actual malice" standard was subsequently extended to public figures in general, and even to private figure plaintiffs seeking punitive or presumptive damages.

One very important distinction 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, a comprehensive discussion of what is and is not libel or slander is difficult, because the definition differs between different states, and under federal law. 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 defamation lawsuits are newspapers or publishers, 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 November 2006, the California Supreme Court ruled that 47 USC § 230(c)(1) does not permit web sites to be be sued for libel that was written by other parties.^[17]

Notes

References

ISBN links support NWE through referral fees

• Collins, Matthew. The Law of Defamation and the Internet. Oxford University Press, 2006. ISBN 0199281823
• Jones, William. Insult to Injury: Libel, Slander, and Invasions of Privacy. University Press of Colorado, 2003. ISBN 0870817426
• Kaplan, Lindsay. The Culture of Slander in Early Modern England. Cambridge University Press, 1997. ISBN 0521584086
• Mitchell, Paul. The Making of the Modern English Law of Defamation. Hart Pub, 2005. ISBN 1841133043
• Price, David. Defamation: Law Procedure and Practice. Sweet & Maxwell, 2000. ISBN 0421742100
• Waddams, S.M. Sexual Slander in Nineteenth-Century England: Defamation in The Ecclesiastical Courts, 1815-1855. University of Toronto Press, 2000. ISBN 0802047505

External links

All links retrieved July 26, 2022.

• Richard Kostelanetz Toward "Hired-Gun Control"
• 10 Things Webmasters Should Know About ... Libel