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Defamation—also called calumny, vilification, slander (for transitory statements), and libel (for written, broadcast, or otherwise published words)—is the communication of a statement that makes a claim, expressly stated or implied to be factual, that may give an individual, business, product, group, government, or nation a negative image. It is usually, but not always,[1] a requirement that this claim be false and that the publication is communicated to someone other than the person defamed (the claimant).

In common law jurisdictions, slander refers to a malicious, false and defamatory spoken statement or report, while libel refers to any other form of communication such as written words or images. Most jurisdictions allow legal actions, civil and/or criminal, to deter various kinds of defamation and retaliate against groundless criticism. Related to defamation is public disclosure of private facts, which arises where one person reveals information that is not of public concern, and the release of which would offend a reasonable person. "Unlike [with] libel, truth is not a defense for invasion of privacy."[2]

False light laws are "intended primarily to protect the plaintiff's mental or emotional well-being."[3] If a publication of information is false, then a tort of defamation might have occurred. If that communication is not technically false but is still misleading, then a tort of false light might have occurred.[3]

In most civil law jurisdictions, defamation is dealt with as a crime rather than a tort.[4]

History

In the later Roman jurisprudence, from which many of modern laws descend, verbal defamations are dealt within the edict under two heads. The first comprehended defamatory and injurious statements made in a public manner (convicium adversus bonos mores). The Praetorian Edict, codified cica 130 A.D., declared that an action could be brought up for shouting at someone contrary to good morals: "qui, advesus bonos mores convicium cui fecisse cuiusve opera factum esse dicitur, quo adversus bonos mores convicium Weret, in eum iudicium dabo." (Digest 47. 10. 15. 2.) In this case the essence of the offense lay in the unwarrantable public proclamation. According to Ulpian, not all shouting was actionable. Drawing on the argument of Labeo, he asserted that the offense consisted in shouting contrary to the morals of the city ("adversus bonos mores huius civitatis") something apt to bring in disrepute or contempt ("quae... ad infamiam vel invidiam alicuius spectaret") the person exposed thereto (Digest 47. 10. 15. 3-6.). Any act apt to bring another person into disrepute gave rise to an actio injurarum. (Digest 47. 10. 15. 25.) In such a case the truth of the statements was no justification for the public and insulting manner in which they had been made. But even in public matters, the accused had the opportunity to justify his actions by openly stating what he considered necessary for public safety to be denounced by the libel, and proving his assertions to be true. (Book 9, Title 36.) The second head included defamatory statements made in private, and in this case the offense lay in the content of the imputation, 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. In the first Satire of their second book, Horace alludes to this provision in a dialogue with the lawyer Trebatius, by punning on mala carmina at lines 82-84:

si mala condiderit in quem quis carmina jus est
judiciumque. esto, siquis mala; sed bona siquis
judice condiderit laudatus Caesare?

Horace's pun turns on the two possible meanings of mala, "evil and unlawful," or "of poor quality".

Roman law 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.

Types of torts

Slander and libel

The common law origins of defamation lie in the torts of slander (harmful statement in a transitory form, especially speech) and libel[5][6] (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.

"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 and slander both require publication.[7] 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 (CD), DVD, blogging and the like, then it is considered libel." The debate whether Internet blogs or Bulletin Boards are publishers is a key subject being addressed, whereas an Internet based community is more akin to conversations in a bar or pub, with content being written as an ongoing dialogue that is generally not edited or regulated such as in the publishing industry.[8]

Criminal defamation

Many nations have criminal penalties for defamation in some situations, and different conditions for determining whether an offense has occurred. ARTICLE 19, a free expression advocacy group, has published global maps[9] charting the existence of criminal defamation law across the globe, as well as showing countries that have special protections for political leaders or functionaries of the state.[10]

The OSCE (Organization for Security and Co-operation in Europe) has also published a detailed database on criminal and civil defamation provisions in 55 countries, including all European countries, all member countries of the Commonwealth of Independent States, the United States and Canada.[11]

Defenses

Even if a statement is derogatory, there are circumstances in which such statements are permissible in law.

Truth

In many legal systems, adverse public statements about legal citizens presented as fact must be proven false to be defamatory or slanderous/libel. Proving adverse, public character statements to be true is often the best defense against a prosecution for libel and/or defamation. Statements of opinion that cannot be proven true or false will likely need to apply some other kind of defense. The use of the defense of justification has dangers, however; if the defendant libels the plaintiff and then runs the defense of truth and fails, he may be said to have aggravated the harm.

Another important aspect of defamation is the difference between fact and opinion. Statements made as "facts" are frequently actionable defamation. Statements of opinion or pure opinion are not actionable. To win damages in a libel case, the plaintiff must first show that the statements were "statements of fact or mixed statements of opinion and fact" and second that these statements were false. Conversely, a typical defense to defamation is that the statements are opinion. One of the major tests to distinguish whether a statement is fact or opinion is whether the statement can be proved true or false in a court of law. If the statement can be proved true or false, then, on that basis, the case will be heard by a jury to determine whether it is true or false. If the statement cannot be proved true or false, the court may dismiss the libel case without it ever going to a jury to find facts in the case.

Under English common law, proving the truth of the allegation was originally a valid defence only in civil libel cases. Criminal libel was construed as an offence against the public at large based on the tendency of the libel to provoke breach of peace, rather than being a crime based upon the actual defamation per se; its truth or falsity was therefore considered irrelevant. Section VI of the Libel Act 1843 allowed the proven truth of the allegation to be used as a valid defence in criminal libel cases, but only if the defendant also demonstrated that publication was for the "Public Benefit".[12]

In some systems, however, notably the Philippines, truth alone is not a defense.[13] Some U.S. statutes preserve historical common law exceptions to the defense of truth to libel actions. These exceptions were for statements "tending to blacken the memory of one who is dead" or "expose the natural defects of one who is alive".[14]

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. Public interest is generally not "what the public is interested in", but rather "what is in the interest of the public".[15] [16]

Noonan v. Staples is sometimes cited as precedent that truth is not a always a defense to libel, but the case is actually not valid precedent on that issue because for some reason Staples didn't argue First Amendment protection for its statements. (see footnote at bottom of page 15 of the courts decision) The courts often don't decide cases on issues not argued by the parties, and thus the court assumed for the sake of that particular case that the Massachusetts law was constitutional under the First Amendment.

Privilege and malice

Privilege provides a complete bar and answer to a defamation suit, though conditions may have to be met before this protection is granted.

There are two types of privilege in the common law tradition:

  • "Absolute privilege" has the effect that a statement cannot be sued on as defamatory, even if it were made maliciously; a typical example is evidence given in court (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).
  • "Qualified privilege" may be available to the journalist as a defense in circumstances where it is considered important that the facts be known in the public interest; an example would be public meetings, local government documents, and information relating to public bodies such as the police and fire departments. Qualified privilege has the same effect as absolute privilege, but does not protect statements that can be proven to have been made with malicious intent.

Other defences

Defences to claims of defamation include:

  • 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. However in UK election law, a true statement made during an election campaign by someone who didn't know it was true is still actionable.[citation needed]
  • 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.[17]
  • Fair comment on a matter of public interest, arguments made with an honest belief in their soundness on a matter of public interest (such as regarding official acts) are defendable against 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–e.g., 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. Essentially, the defense is that the person had such a bad reputation before the libel, that no further damage could possibly have been caused by the making of the statement.
  • No Third-party communication: If an employer were to bring an employee into a sound-proof, isolated room, and accuse him of embezzling company money, the employee would have no defamation recourse, since no one other than the would-be plaintiff and would-be defendant heard the false statement.
  • No actual injury: If there is third-party communication, but the third-party hearing the defamatory statement does not believe the statement, or does not care, then there is no injury, and therefore, no recourse.

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. Also, the public figure doctrine, also called the absence of malice rule, may be used as a defense.

Public figure doctrine (absence of malice)

Special rules apply in the case of statements made in the press concerning public figures, which can be used as a defense. A series of court rulings led by New York Times Co. v. Sullivan, 376 U.S. 254 (1964) established that for a public official (or other legitimate public figure) to win a libel case, the statement must have been published knowing it to be false or with reckless disregard to its truth, (also known as actual malice).[18]

Under United States law, libel generally requires five key elements. The plaintiff must prove that the information was published, the plaintiff 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 and freedom of speech

Defamation laws may come into tension with freedom of speech, leading to censorship or chilling effects where publishers fear lawsuits, or loss of reputation where individuals have no effective protection against reckless or unfounded allegations. Article 10 of the European Convention on Human Rights permits restrictions on freedom of speech when necessary to protect the reputation or rights of others.[19]

Jurisdictions resolve this tension in different ways, in particular in determining where the burden of proof lies when unfounded allegations are made. The power of the internet to disseminate comment, which may include malicious comment, has brought a new focus to the issue.[20]

There is a broader consensus against laws that criminalize defamation. Human rights organizations, and other organizations such as the Council of Europe and Organization for Security and Co-operation in Europe, have campaigned against strict defamation laws that criminalize defamation.[21][22] The European Court of Human Rights has placed restrictions on criminal libel laws because of the freedom of expression provisions of the European Convention on Human Rights. One notable case was Lingens v. Austria (1986).

Defamation laws by jurisdiction

Internationally

Article 17 of the United Nations International Covenant on Civil and Political Rights states

1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
2. Everyone has the right to the protection of the law against such interference or attacks.

Asia

Azerbaijan

In Azerbaijan, the crime of defamation (Article 147) may result in a fine up to “500 times the amount of minimum salaries”, public work for up to 240 hours, correctional work for up to one year, or imprisonment of up to six months. Penalties are aggravated to up to three years of prison if the victim is falsely accused of having committed a crime “of grave or very grave nature” (Article 147.2). The crime of insult (Article 148) can lead to a fine of up to 1000 times the minimum wage, or to the same penalties of defamation for public work, correctional work or imprisonment. [23][24]

According to the OSCE report on defamation laws, “Azerbaijan intends to remove articles on defamation and insult from criminal legislation and preserve them in the Civil Code”[25].

Republic of Korea

For such laws as “Defamation” -Act on Promotion of Information and Communications Network Utilization and Data Protection, etc. (Republic of Korea [internet and email related laws]) – Park, 2005 CHAPTER IX Article 61 (Penal Provisions) This may show defamation varies significantly from North American laws and in general by country and by case.

(1) Any person who has defamed any other person by alleging openly facts through information and communications networks [internet and email] with the purpose of slandering him shall be subject to imprisonment with or without prison labor for not more than 3 years or by a fine not exceeding 20 million won.

(2) Any person who has defamed any other person by alleging openly false facts via information and communications networks [internet and email]with the purpose of slandering him/her shall be subject to imprisonment with prison labor for not more than 7 years or the suspension of disqualification for not more than 10 years, or by a fine not exceeding 50 million won [approximately US$50,000 plus possible civil actions and related damages].

As of Dec 2009, cases were heard before Korean courts and individuals were fined w2,000,000 ($2,000) for true facts identified in Korea submitted by email to lawyers managing the said case in Canada - international “comity” procedure or “intent” seem unrelated.[26]

Singapore

Rights groups such as Amnesty International have argued that "the misuse of defamation suits by ruling People's Action Party (PAP) leaders has contributed to a climate of self-censorship in Singapore and restricted the right of those Singaporeans with dissenting opinions to participate freely and fully in public life".[27]

Owners of cybercafes may be held liable for libelous statements posted or possibly viewed in their establishments.[28]

In 2001, DBS Bank was fined S$2 million (approx. 1 million euros or 1 million US$ at the time) for accidentally publishing a mildly libelous statement during the heated discussion of a takeover bid for Overseas Union Bank. 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 SG$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.[29]

On September 24, 2008, the High Court of Singapore, in a summary judgment by Justice Woo Bih Li, ruled that Hugo Restall, as editor of the Far Eastern Economic Review defamed Lee Kuan Yew and his son, Prime Minister Lee Hsien Loong by publishing an interview containing critical (and, in the court's opinion, defamatory) remarks by opposition leader Chee Soon Juan.[30]

Soviet Union

In the former Soviet Union, defamatory insults “could only constitute a criminal offense, not a civil wrong”[31].

Europe

The ecommerce regulations (EC Directive), The "mere conduit" defence[32]

Albania

According to the Criminal Code of Albania, defamation is a crime. Insulting (Article 119) can lead to a fine or up to six months of imprisonment (if in public, up to a year), while libel (Article 120) may result in a fine or up to a year of prison (up to 2 years when in public). In addition, defamation of authorities, public officials or foreign representatives (Articles 227, 239 to 241) are separate crimes with maximum penalties varying from 1 to 3 years of imprisonment.[33][34]

Austria

In Austria, the crime of defamation is foreseen by Article 111 of the Criminal Code. Related criminal offenses include “slander and assault” (Article 115), that happens “if a person insults, mocks, mistreats or threatens will ill-treatment another one in public”, and yet “malicious falsehood” (Article 297), defined as a false accusation that exposes someone to the risk of prosecution.[35]

Belgium

In Belgium, crimes against honour are foreseen in Chapter V of the Belgian Penal Code, Articles 443 to 453-bis. Someone is guilty of calumny « when law admits proof of the alleged fact » and of defamation “when law does not admit this evidence” (Article 443). The penalty is 8 days to one year of imprisonment, plus a fine (Article 444). In addition, the crime of “calumnious denunciation” (Article 445) is punished with 15 days to six months in prison, plus a fine. In any of the crimes covered by Chapter V of the Penal Code, the minimum penalty may be doubled (Article 453-bis) « when one of the motivations of the crime is hatred, contempt or hostility of a person due to his or her intended race, color of the skin, ancestry, national origin or ethnicity, nationality, gender, sexual orientation, marital status, place of birth, age, patrimony, philosophical or religious belief, present or future health condition, disability, native language, political beliefs, physical or genetical characteristic, or social origin.” [36] [37]

Bulgaria

In Bulgaria, defamation is formally a criminal offense, but the penalty of imprisonment has been abolished in 1999. Articles 146 (insult), 147 (criminal defamation) and 148 (public insult) of the Criminal Code prescribe a penalty of fine.[38]

Croatia

In Croatia, the crime of insult prescribes a penalty of up to three months in prison, or a fine of “up to 100 daily incomes” (Criminal Code, Article 199). If the crime is committed in public, penalties are aggravated to up to six months of imprisonment, or a fine of “up to 150 daily incomes” (Article 199-2). Moreover, the crime of defamation occurs when someone affirms or disseminates false facts about other person that can damage his reputation. The maximum penalty is one year in prison, or a fine of up to 150 daily incomes (Article 200-1). If the crime is committed in public, the prison term can reach one year (Article 200-2). On the other hand, according to Article 203, there is an exemption for the application of the aforementioned articles (insult and defamation) when the specific context is that of a scientific work, literary work, work of art, public information conducted by a politician or a government official, journalistic work, or the defense of a right or the protection of justifiable interests, in all cases provided that the conduct was not aimed at damaging someone's reputation.[39]

Czech Republic

According to the Czech Criminal Code, Article 184, defamation is a crime. Penalties may reach a maximum prison term of one year (Article 184-1) or, if the crime is committed through the press, film, radio, TV, publicly accessible computer network, or by “similarly effective” methods, the offender may stay in prison for up to two years or be prohibited of exercising a specific activity.[40]

Denmark

In Denmark, libel is a crime, as defined by Article 267 of the Danish Criminal Code, with a penalty of up to six months in prison or a fine, with proceedings initiated by the victim. In addition, Article 266-b prescribes a maximum prison term of two years in the case of public defamation aimed at a group of persons because of their race, color, national or ethnic origin, religion or “sexual inclination”[41][42].

Finland

In Finland, defamation is a crime, according to the Penal Code, Chapter 24, Section 9, Clause (1), § (1), with a penalty of imprisonment of up to six months or a fine. When the defamation occurs in public, the crime is “aggravated defamation” (Chapter 24, Section 10), with a maximum punishment of two years in prison or a fine. In addition, there’s also a crime called “invasion of personal reputation” (Chapter 24, Section 8), that deals with the public dissemination of information that can harm one’s private life. However, personalities involved in the fields of politics, business, public office or public position, “or in a comparable position”, are specifically not protected by this article.[43][44]

Germany

In German law, there is no distinction between libel and slander. German defamation lawsuits are increasing.[45] The relevant offences of Germany's Criminal Code are §90 (Denigration of the President of State), §90a (Denigration of the State and its Symbols), §90b (Unconstitutional denigration of the Organs of the Constitution), §185 ("insult"), §186 (Defamation of character), §187 (Defamation with deliberate untruths), §188 (Political defamation with increased penalties for offending against paras 186 and 187), §189 (Denigration of a deceased person), , §192 ("insult" with true statements). Other sections relevant to prosecution of these offences are §190 (Criminal conviction as proof of truth), §193 (No defamation in the pursuit of rightful interests), §194 (The Application for a criminal prosecution under these paragraphs), §199 (Mutual insult allowed to be left unpunished), and §200 (Method of proclamation). Paragraph 188 has been criticized for allowing certain public figures additional protection against criticism.

Greece

In Greece, the maximum prison term for defamation, libel or insult is five years, while the maximum fine is € 15,000.[46]

The crime of insult (Article 361, § 1, of the Penal Code) may lead to up to one year of imprisonment and/or a fine, while unprovoked insult (Article 361-A, § 1) is punished with at least three months in prison. In addition, defamation may result in up to two months in prison and/or a fine, while aggravated defamation can lead to at least 3 months of prison, plus a possible fine (Article 363) and deprivation of the offender's civil rights. Finally, disparaging the memory of a deceased person is punished with imprisonment of up to 6 months (Penal Code, Article 365). [47]

Italy

In Italy, there are different crimes against honor. The crime of injury (Article 594 of the Penal Code) refers to offending one's honor and is punished with up to six months in prison or up to 516 Euros in fine. If the offense refers to the attribution of a determined fact and is committed before many persons, penalties are doubled to up to a year in prison or up to 1032 Euros in fine. In addition, the crime of defamation (Article 595, Penal Code) refers to any other situation involving offending one’s reputation before many persons, and has a penalty of up to a year in prison or up to 1032 Euros in fine, doubled to up to two years in prison or a fine of 2065 Euros if the offense consists of the attribution of a determined fact. When the offense happens by the means of the press or by any other means of publicity, or in a public demonstration, the penalty is of imprisonment from six months to three years, or a fine of at least 516 Euros.[48]

Finally, Article 31 of the Penal Code establishes that crimes committed with abuse of power or with abuse of a profession or art, or with the violation of a duty inherent to that profession or art, lead to the additional penalty of a temporary ban in the exercise of that profession or art.[49][50]

Norway

In Norway, defamation is a crime punished with imprisonment of up to 6 months or a fine (Penal Code, Chapter 23, § 246). When the offense is likely to harm one's “good name” and reputation, or exposes him to hatred, contempt or loss of confidence, the maximum prison term goes up to one year, and if the defamation happens in print, in broadcasting or through a especially aggravating circumstance, imprisonment may reach two years (§ 247). When the offender acts “against his better judgement”, he is liable to a maximum prison term of three years (§ 248). According to § 251, defamation lawsuits must be initiated by the offended person, unless the defamatory act was directed to an indefinite group or a large number of persons, when it may also be prosecuted by public authorities.[51][52]

Poland

In Poland, defamation is a crime that consists of accusing someone of a conduct that may degrade him in public opinion or expose him “to the loss of confidence necessary for a given position, occupation or type of activity”. Penalties include fine, limitation of liberty and imprisonment for up to a year (Article 212.1 of the Criminal Code). The penalty is more severe when the offense happens through the media (Article 212.2).[53] When the insult is public and aims at offending a group of people or an individual because of his or their nationality, ethnicity, race, religion or lack of religion, the maximum prison term is 3 years.[54]

Portugal

In Portugal, defamation crimes are: “defamation” (article 180 of the Penal Code; up to six months in prison, or a fine of up to 240 days), “injuries” (art. 181; up to 3 months in prison, or a fine up to 120 days), and “offense to the memory of a deceased person” (art. 185; up to 6 months in prison or a fine of up 240 days). Penalties are aggravated in cases with publicity (art. 183; up to two years in prison or at least 120 days of fine) and when the victim is an authority (art.184; all other penalties aggravated by an extra half). There is yet the extra penalty of “public knowledge of the court decision” (costs paid by the defamer) (art. 189 of Penal Code) and also the crime of “incitation of a crime” (article 297; up to 3 years in prison, or fine).[55][56]

Spain

In Spain, the crime of calumny (Article 205 of the Penal Code) consists of offending one's reputation knowing the falsity of the offense, or with a reckless contempt for truth. Penalties for cases with publicity are imprisonment from six months to two years or a fine of 12 to 24 months-fine, and for other cases only a fine of 6 to 12 months-fine (Article 206). Additionally, the crime of injury (Article 208 of the Penal Code) consists of hurting someone's dignity, depreciating his reputation or injuring his self-esteem, and is only applicable if the offense, by its nature, effects and circumstances, is considered by the general public as strong. Injury has a penalty of fine from 3 to 7 months-fine, or from 6 to 14 months-fine when it's strong and with publicity. According to Article 216, an additional penalty to calumny or injury may be imposed by the judge, determining the publication of the judicial decision (in a newspaper) at the expenses of the defamer.[57][58]

Sweden

In Sweden, defamation is foreseen in Chapter 5, Section 1, of the Criminal Code and consists of pointing out someone as a criminal or as “having a reprehensible way of living”, or of providing information about him “intended to cause exposure to the disrespect of others”. The penalty is a fine. Additionally, the crime of “gross defamation” has a penalty of up to 2 years in prison or a fine, where “gross” is characterized when the information, because of its content or the scope of its dissemination, is calculated to produce “serious damage” (Chapter 5, Section 2). Other insults not characterized as defamation or gross defamation constitute the crime of “insulting behavior”, punishable with a fine or, if it's “gross”, with up to six months of prison or a fine (Section 3). According to Section 4 of Chapter 5, defamation of a deceased person also results in liability under Sections 1 or 2.[59] Finally, according to the Swedish Freedom of the Press Act, Chapter 7, both criminal and civil lawsuits may be brought to court under the law on libel.[60]

Switzerland

In Switzerland, the crime of "calumny" is punished with a maximum term of three years in prison, or with a fine of at least 30 days-fine, according to Article 174-2 of the Swiss Criminal Code. There is calumny when the offender knows the falsity of his/her allegations and intentionally looks to ruin the reputation of one’s victim (see Articles 174-1 and 174-2).[61]

On the other hand, "difamation" is punished only with a maximum fine of 180 days-fine (Article 173-1).[62] When it comes to a deceased or absent person, there is a limitation to enforce the law up to 30 years (after the death).[63]

United Kingdom

England and Wales

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 history of defamation law in England is somewhat obscure. Civil actions for damages seem to have been relatively frequent so far back as the reign of Edward I (1272–1307),[citation needed] though it is unknown whether any generally applicable criminal process was in use. The first fully reported case in which libel is affirmed generally to be punishable at common law was tried during the reign of James I.[citation needed] From that time we find both the criminal and civil remedies in full operation.

English law allows actions for libel to be brought in the High Court for any published statements alleged to defame a named or identifiable individual or individuals in a manner that causes them loss in their trade or profession, or causes a reasonable person to think worse of them. Allowable defenses are justification (the truth of the statement), fair comment (whether the statement was a view that a reasonable person could have held), and privilege (whether the statements were made in Parliament or in court, or whether they were fair reports of allegations in the public interest). An offer of amends is a barrier to litigation. A defamatory statement is presumed to be false unless the defendant can prove its truth. Furthermore, to collect compensatory damages, a public official or public figure must prove actual malice (knowing falsity or reckless disregard for the truth).[citation needed] A private individual must only prove negligence (not using due care) to collect compensatory damages.[citation needed] To collect punitive damages, all individuals must prove actual malice.

Criminal libel was abolished on 12 January 2010 by section 73 of the Coroners and Justice Act 2009.[64] There were only a few instances of the criminal libel law being applied. Notably, the Italian anarchist Errico Malatesta was convicted of criminal libel for denouncing the Italian state agent Ennio Belelli in 1912.

Scotland

In Scots law, as in other jurisdictions that 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".

Latin America

Argentina

In Argentina, the crimes of calumny and injury are foreseen in the chapter “Crimes Against Honor” (Articles 109 thru 117-bis) of the Penal Code. Calumny is defined as “the false imputation to a determined person of a concrete crime that leads to a lawsuit” (Article 109). However, expressions referring to subjects of public interest or that are not assertive don’t constitute calumny. Penalty is a fine from 3,000 to 30,000 pesos. He who intentionally dishonor or discredit a determined person is punished with a penalty from 1,500 to 20,000 pesos (Article 110).

He who publishes or reproduces, by any means, calumnies and injuries made by others, will be punished as responsible himself for the calumnies and injuries whenever its content is not correctly attributed to the corresponding source. Exceptions are expressions referring to subjects of public interest or that are not assertive (see Article 113). When calumny or injury are committed through the press, a possible extra penalty is the publication of the judicial decision at the expenses of the guilty (Article 114). He who passes to someone else information about a person that is included in a personal database and that one knows to be false, is punished with six months to 3 years in prison. When there is harm to somebody, penalties are aggravated by an extra half (Article 117 bis, §§ 2nd and 3rd).[65]

Brazil

In Brazil, defamation is a crime, which is prosecuted either as “defamation” (three months to a year in prison, plus fine; Article 139 of the Penal Code), “calumny” (six months to two years in prison, plus fine; Article 138 of the PC) and/or “injury” (one to six months in prison, or fine; Article 140), with aggravating penalties when the crime is practiced in public (Article 141, item III). Incitation to hate and violence is also foreseen in the Penal Code (incitation to a crime, Article 286). Moreover, in situations like bullying or moral constraint, defamation acts are also covered by the crimes of “illegal constraint” (Article 146 of the Penal Code) and “arbitrary exercise of discretion” (Article 345 of PC), defined as breaking the law as a vigilante.[66]

Chile

In Chile, the crimes of calumny and injury are covered by Articles 412 thru 431 of the Penal Code. Calumny is defined as “the false imputation of a determined crime and that can lead to a public prosecution” (Article 412). If the calumny is written and with publicity, penalty is “lower imprisonment” in its medium degree plus a fine of 11 to 20 “vital wages” when it refers to a crime, or “lower imprisonment” in its minimum degree plus a fine of 6 to 10 “vital wages” when it refers to a misdemeanor (Article 413). If it’s not written or with publicity, penalty is “lower imprisonment” in its minimum degree plus a fine of 6 to 15 “vital wages” when it's about a crime, or plus a fine of 6 to 10 “vital wages” when it's about a misdemeanor (Article 414).[67][68]

According to Article 25 of the Penal Code, “lower imprisonment” is defined as a prison term between 61 days and five years. According to Article 30, the penalty of “lower imprisonment” in its medium or minimum degrees carries with it also the suspension of the exercise of a public position during the prison term.[69]

Article 416 defines injury as “all expression said or action performed that dishonors, discredits or causes contempt”. Article 417 defines broadly “grave injury”, including the imputation of a crime or misdemeanor that cannot lead to public prosecution, and the imputation of a vice or lack of morality, which are capable of harming considerably the reputation, credit or interests of the offended person. “Grave injuries” in written form or with publicity are punished with “lower imprisonment” in its minimum to medium degrees plus a fine of 11 to 20 “vital wages”. Calumny or injury of a deceased person (Article 424) can be prosecuted by the spouse, sons, grandsons, parents, grandparents, siblings and heirs of the offended person. Finally, according to Article 425, in the case of calumnies and injuries published in foreign newspapers, are considered liable all those who from Chilean territory sent articles or gave orders for publication abroad, or contributed to the introduction of such newspapers in Chile with the intention of propagating the calumny and injury.[70]

North America

Canada

As is the case for most Commonwealth jurisdictions, Canada 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.[71] 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 Hill v. Church of Scientology of Toronto (1995), the Supreme Court of Canada rejected the actual malice test adopted in the US case New York Times Co. v. Sullivan. Once a claim has been made, the defendant may avail themselves to a defense of justification (the truth), fair comment, responsible communication,[72] 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. To establish civil liability for defamation, the plaintiff must establish, on a balance of probabilities, the existence of an injury, a wrongful act, and of a causal connection between the two. A person who has made defamatory remarks will not necessarily be civilly liable for them. The plaintiff must further demonstrate that the person who made the remarks committed a wrongful act. Defamation in Quebec is governed by a reasonableness standard, as opposed to strict liability; a defendant who made a false statement would not be held liable if it was reasonable to believe the statement was true.[73]

Criminal defamation

In Canada, the so-called « blasphemous libel» is a crime punished with a maximum term of two years in prison, according to Article 296-1 of the Canadian Criminal Code, as well as the crime of « defamatory libel » (Article 298), which receives the same penalty (see Article 301). In the specific case of a “libel known to be false” (Article 300), the prison term increases to a maximum of five years. According to Article 298, a defamatory libel “is matter published, without lawful justification or excuse, that is likely to injure the reputation of any person by exposing him to hatred, contempt or ridicule, or that is designed to insult the person of or concerning whom it is published”[74].

The criminal portion of the law has been rarely applied. In the most recent case, in 1994 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.[75]

According to a OSCE official report on defamation laws, 57 persons in Canada were accused of defamation, libel and insult, among which 23 were convicted – 9 to prison sentences, 19 to probation and one to a fine. The average period in prison was 270 days, and the maximum sentence was 1460 days of imprisonment.[76]

United States

The origins of US defamation law pre-date the American Revolution; one famous 1734 case involving John Peter Zenger sowed the seed for the later establishment of truth as an absolute defense against libel charges. The outcome of the case is one of jury nullification, and not a case where the defense acquitted itself as a matter of law. (Previous English defamation law had not provided the defense of truth.) Though the First Amendment of the U.S. Constitution was designed to protect freedom of the press, for most of the history of the United States, the Supreme Court neglected to use it to rule on libel cases. This left libel laws, based upon the traditional common law of defamation inherited from the English legal system, mixed across the states. The 1964 case New York Times Co. v. Sullivan, however, dramatically altered the nature of libel law in the United States by elevating the fault element for public officials to actual malice—that is, public figures could win a libel suit only if they could demonstrate the publisher's "knowledge that the information was false" or that the information was published "with reckless disregard of whether it was false or not". Later Supreme Court cases dismissed the claim for libel and forbade libel claims for statements that are so ridiculous to be clearly not true, or that involve opinionated subjects such as one's physical state of being. Recent cases have addressed defamation law and the internet.

Defamation law in the United States is much less plaintiff-friendly than its counterparts in European and the Commonwealth countries. 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. Criminal libel is rare or nonexistent, depending on the state. Defenses to libel that can result in dismissal before trial include the statement being one of opinion rather than fact or being "fair comment and criticism". Truth is always a defense.

Most states recognize that some categories of statements are considered to be defamatory per se, such that people making a defamation claim for these statements do not need to prove that the statement was defamatory.[77]

Record awards

The record libel verdict in the United States was rendered in 1997 against Dow Jones in favor of MMAR Group Inc. $222.7 Million,[78] whereas the record verdict rendered in favour of an individual was the award of $35.5 million against the Russian newspaper Izvestia [79] in favor of entrepreneur Alex Konanykhin, who also won a $3,000,000 judgment against Kommersant, another Russian newspaper.[80]

Defamation per se

The four (4) categories of slander that are actionable per se are (i) accusing someone of a crime; (ii) alleging that someone has a foul or loathsome disease; (iii) adversely reflecting on a person’s fitness to conduct their business or trade; and (iv) imputing serious sexual misconduct. Here again, the plaintiff need only prove that someone had published the statement to any third party. No proof of special damages is required.

Criminal defamation

On the federal level, there are no criminal defamation or insult laws in the United States. However, on the state level, 17 states and 2 territories as of 2005 had criminal defamation laws on the books: Colorado (Colorado Revised Statutes, § 18-13-105), Florida (Florida Statutes, § 836.01-836.11), Idaho (Idaho Code, § 18-4801-18-4809), Kansas (Kansas Statute Annotated, §21-4004), Louisiana (Louisiana R.S., 14:47), Michigan (Michigan Compiled Laws, § 750.370), Minnesota (Minnesota Statutes. § 609.765), Montana (Montana Code Annotated, § 13-35-234), New Hampshire (New Hampshire Revised Statute Annotated, § 644:11), New Mexico (New Mexico Statute Annotated, §30-11-1), North Carolina (North Carolina General Statutes, § 14-47), North Dakota (North Dakota Century Code, § 12.1-15-01), Oklahoma (Oklahoma Statutes, tit. 27 §§ 771-781), Utah (Utah Code Annotated, § 76-9-404), Virginia (Virginia Code Annotated, § 18.2-417), Washington (Washington Revised Code, 9.58.010), Wisconsin (Wisconsin Statutes, § 942.01), Puerto Rico (Puerto Rico Laws, tit. 33, §§ 4101-4104) and Virgin Islands (Virgin Islands Code, Title 14, § 1172).[81]

Oceania

Australia

Australian law tends to follow English law on defamation issues, although there are differences introduced by statute and by the implied constitutional limitation on governmental powers to limit speech of a political nature established in Lange v Australian Broadcasting Association (1997).

Since the introduction of the uniform defamation laws in 2005 the distinction between slander and libel has been abolished.

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 established that Internet-published foreign publications that defamed an Australian in their Australian reputation could be held accountable under Australian libel law. The case gained worldwide attention and is often said, inaccurately, to be the first of its kind. A similar case that predates Gutnick v Dow Jones is Berezovsky v Forbes in England.[82]

Slander has been occasionally used to justify (and with some success) physical reaction, however usually the punishment for assault is only slightly reduced when there is evidence of provocation.

Among the various common law jurisdictions, some Americans have presented a visceral and vocal reaction to the Gutnick decision.[83] On the other hand, the decision mirrors similar decisions in many other jurisdictions such as England, Scotland, France, Canada and Italy.

Uniform legislation was passed in Australia in 2005 severely restricting the right of corporations to sue for defamation (see, eg, Defamation Act 2005 (Vic), s 9). The only corporations excluded from the general ban are those not for profit or those with less than 10 employees and not affiliated with another company. Corporations may, however, still sue for the tort of injurious falsehood, where the burden of proof is greater than for mere defamation, because the plaintiff must show that the defamation was made with malice and resulted in economic loss.[84]

The 2005 reforms also established across all Australian states the availability of truth as an unqualified defense; previously a number of states only allowed a defense of truth with the condition that a public benefit existed.[85]

Religious law

Related torts

Some jurisdictions have a separate tort or delict of "verbal injury", "intentional infliction of emotional distress", "outrageousness", or "convicium", involving the making of a statement, even if truthful, intended 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 that is untrue even though not defamatory. Thus a surveyor who states a house is free from risk of flooding has not defamed anyone, but may still be liable to someone who purchases the house relying on this statement. Other increasingly common claims similar to defamation in U.S. law are claims that a famous trademark has been diluted through tarnishment, see generally trademark dilution, "intentional interference with contract", and "negligent misrepresentation".

Criminal laws prohibiting protests at funerals, sedition, false statements in connection with elections, and the use of profanity in public, are also often used in contexts similar to criminal libel actions.

The boundaries of a court's power to hold individuals in "contempt of court" for what amounts to alleged defamatory statements about judges or the court process by attorneys or other people involved in court cases is also not well established in many common law countries.

See also

References

  1. ^ E.g., in the case the offense of defamatory libel under the common law of England and Wales, where prior to the enactment of section 6 of the Libel Act 1843 (defense of justification for the public benefit), the truth of the defamatory statement was irrelevant, and it continues to be sufficient that it is published to the defamed person alone.
  2. ^ Center for Visual Computing Invasion of Privacy
  3. ^ a b False light by Professor Edward C. Martin - Cumberland School of Law, Samford University
  4. ^ The Law Reform Commission of Ireland - Consultation Paper on the Civil Law of Defamation (see item 360 in bold)
  5. ^ from Latin : libellus ("little book") ("Webster's 1828 Dictionary, Electronic Version". Christian Technologies, Inc.. 1828. http://65.66.134.201/cgi-bin/webster/webster.exe?search_for_texts_web1828=libel. Retrieved 2006-12-31. 
  6. ^ "Online Etymology Dictionary". http://www.etymonline.com/index.php?search=libel&searchmode=none. Retrieved 2006-12-31. )
  7. ^ 50 Am.Jur.2d libel and slander 1-546
  8. ^ "out-law.com". August 8, 2008. http://www.out-law.com/page-9330. 
  9. ^ Map showing countries with criminal defamation laws
  10. ^ ARTICLE 19 statements on criminalized defamation
  11. ^ OSCE Report - Libel and Insult Laws: a matrix on where we stand and what we would like to achieve
  12. ^ Folkard, Henry Coleman (1908). The Law of Slander and Libel. London: Butterworth & Co.. pp. 480. http://books.google.com/books?id=7C8WAAAAYAAJ&lpg=PA579&ots=6o0ssMhlBM&dq=libel%20act%201843&pg=PA480#v=onepage&q=public%20benefit&f=false. 
  13. ^ Republic of the Philippines. "The Revised Penal Code". Chan Robles law Firm. http://www.chanrobles.com/revisedpenalcodeofthephilippinesbook2.htm. Retrieved 2006-11-24. "Art. 353. Definition of libel. – A libel is public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead." 
  14. ^ See, for example, Section 18-13-105, Colorado Revised Statutes
  15. ^ "Legal dictionary". findlaw.com. http://dictionary.lp.findlaw.com/scripts/results.pl?co=dictionary.lp.findlaw.com&topic=61/610d76026e388dc5e6c88e6a8ddcef8d#public%20interest. Retrieved 2006-11-24. 
  16. ^ "Legal Terms". legal.org. http://www.canona650.com. Retrieved 2004-10-22. 
  17. ^ Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990)
  18. ^ New York Times Co. v. Sullivan, 376 U.S. 254 (1964).
  19. ^ Article 10 of the European Convention on Human Rights
  20. ^ BBC News, reporting the comments of Professor Michael Geist, July 31, 2006
  21. ^ IRIS 2006-10:2/1: Ilia Dohel, Office of the OSCE Representative on Freedom of the Media. Representative on Freedom of the Media: Report on Achievements in the Decriminalization of Defamation
  22. ^ PACE Resolution 1577 (2007): Towards decriminalisation of defamation
  23. ^ European Council – Laws on Defamation (English version) – Section Azerbaijan
  24. ^ Criminal Code of the Azerbaijan Republic English)
  25. ^ OSCE report – Libel and Insult Laws (see page 19)
  26. ^ Unofficial translation by Prof Whon-Il Park, Asst. Prof. of Law at Kyung Hee University, www.worldlii.org/int/other/PrivLRes/2005/2.html additions by Watts, S. [Dec. 30, 2005]
  27. ^ Document - Singapore: Defamation suits threaten Chee Soon Juan and erode freedom of expression Amnesty International
  28. ^ Libel On The Internet: An International Problem
  29. ^ The recent spat by the DBS bank is proof that the libel law in Singapore needs to be reformed
  30. ^ news.bbc.co.uk, Editor 'defamed' Singapore leader
  31. ^ Copyright, Defamation and Privacy in Soviet Civil Law (LEVITSKY, Serge L.) (Law in Eastern Europe, No. 22 (I) – Issued by the Documentation Office for East European Law, from the University of Leyden, page 114)
  32. ^ [1]
  33. ^ Criminal Code of the Republic of Albania – English version
  34. ^ European Council – Aperçu des legislations nationales en matière de diffamation et d'injure – English version – Section Albania
  35. ^ European Council – Laws on Defamation (English version) – Section Austria
  36. ^ (French) Belgian Penal Code – Crimes against honour (see Articles 443 to 453-bis)
  37. ^ European Council – Laws on Defamation – Section Belgium (French)
  38. ^ European Council – Laws on Defamation (English version) – Section Bulgary
  39. ^ European Council – Laws on Defamation (English) – Section Croatia
  40. ^ Czech Criminal Code – Law No. 40/2009 Coll., Article 184
  41. ^ European Council – Laws on Defamation (English) – Section Denmark
  42. ^ OSCE report on defamation laws (English) (see page 51, item 6)
  43. ^ The Penal Code of Finland (English version)
  44. ^ European Council – Laws on Defamation (English) – Section Finland
  45. ^ Bundeskriminalamt (Federal Police) Yearly Statistics 2006
  46. ^ OSCE Report on Defamation laws in Europe and North America (see page 68, items 6 and 7)
  47. ^ European Council – Laws on Defamation (English) – Section Greece
  48. ^ (Italian) Italian Penal Code (see Articles 594-595)
  49. ^ OSCE Report on Insult Laws in Europe and North America (see page 79, item 8)
  50. ^ (Italian) Italian Penal Code (see Article 31)
  51. ^ European Council – Defamation Laws (English) – Section Norway
  52. ^ Norwegian Penal Code (English version)
  53. ^ European Council – Defamation Laws (English) – Section Poland
  54. ^ OSCE Report on Defamation Laws in Europe and North America (see page 117, item 6)
  55. ^ (Portuguese) Portuguese Penal Code (articles 180 to 189)
  56. ^ (Portuguese) Portuguese Penal Code (official version)PDF (641 KB) (full text)
  57. ^ (Spanish) Penal Code of Spain (Articles 205 thru 216)
  58. ^ European Council – Laws on Defamation (English) – Section Spain
  59. ^ Swedish Penal Code (English version) (see Chapter 5)
  60. ^ European Council – Laws on Defamation (English) – Section Sweden
  61. ^ (French) Swiss Penal Code – Calumny (Article 174)
  62. ^ (French) Swiss Penal Code – Defamation (Article 173)
  63. ^ (French) Swiss Penal Code – Defamation and calumny against a deceased or absent person (Article 175)
  64. ^ Coroners and Justice Act 2009
  65. ^ (Spanish) Argentinian Penal Code (official text) – Crimes Against Honor (Articles 109 thru 117-bis)
  66. ^ (Portuguese) Brazilian Penal Code (official text)
  67. ^ (Spanish) Chilean Penal Code, Book II (see Articles 412 to 431)
  68. ^ (Spanish) IEstudiosPenales.com.ar – Penal Code of ChilePDF (578 KB) (see pages 75-78)
  69. ^ (Spanish) Chilean Penal Code, Book I (see Articles 25 and 30)
  70. ^ (Spanish) Biblioteca.jus.gov.ar – Penal Code of Chile (see articles 416-417 and 424-425)
  71. ^ Murphy v. LaMarsh (1970), 73 W.W.R. 114
  72. ^ Supreme Court of Canada - Decisions - Grant v. Torstar Corp
  73. ^ Société Radio-Canada c. Radio Sept-Îles inc., [1994] R.J.Q. 1811 canlii.org
  74. ^ (English) Canadian Criminal Code – Blasphemous Libel and Defamatory Libel (see Articles 296 to 317)
  75. ^ Moles, Robert N, PhD. "Canada reports: Libel case may set precedent". Networked Knowledge. http://netk.net.au/Canada/Canada15.asp. Retrieved 2009-01-03. 
  76. ^ OSCE Report on Defamation Laws (English) (see page 40)
  77. ^ Dancing With Lawyers
  78. ^ New York Times, "Firm Awarded $222.7 Million In a Libel Suit Vs. Dow Jones"
  79. ^ Awards $35.5 Million To Russian In Libel Case, The Washington Post, December 16th, 1999
  80. ^ U.S. Court Finds Kommersant Guilty of Libel
  81. ^ OSCE – Libel and Insult Laws: A Matrix on Where We Stand and What We Would Like to Achieve (see page 171; report on the United States provided by HELLER, Dave, from the Media Law Resource Center)
  82. ^ House of Lords - Berezovsky v. Michaels and Others Glouchkov v. Michaels and Others (Consolidated Appeals)
  83. ^ Letter From the Editor - Barron's Online
  84. ^ Australian Press Council - Press Law in Australia
  85. ^ Electronic Frontiers Australia: civil liberties online

External links

Look up defamation, slander, and/or libel in Wiktionary, the free dictionary.

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Quotes

Up to date as of January 14, 2010
(Redirected to Defamation article)

From Wikiquote

In law, defamation (also called vilification, slander, and libel) is the communication of a statement that makes a false claim, expressively stated or implied to be factual, that may give an individual, business, product, group, government or nation a negative image. Slander refers to a malicious, false, and defamatory statement or report, while libel refers to any other form of communication such as written words or images. Most jurisdictions allow legal actions, civil and/or criminal, to deter various kinds of defamation and retaliate against groundless criticism.

Sourced

  • 'Tis slander,
    Whose edge is sharper than the sword, whose tongue
    Outvenoms all the worms of Nile.
  • King: So haply slander-
    Whose whisper o'er the world's diameter,
    As level as the cannon to his blank,
    Transports his poisoned shot- may miss our name
    And hit the woundless air.- O, come away!
    My soul is full of discord and dismay.
  • Every libel, which is called famosus libellus, is made either against a private man, or against a public person. If it be against a private man, it deserves a severe punishment.
  • Audacter calumniare, semper aliquid haeret.
    • Translated: "Hurl your calumnies boldly; something is sure to stick".
    • Francis Bacon, De Augmentis Scientiarum (1623).
  • Slander is a poison which extinguishes charity, both in the slanderer and in the persons who listen to it.
    • St. Bernard, reported in Josiah Hotchkiss Gilbert, Dictionary of Burning Words of Brilliant Writers (1895), p. 214.
  • I hate the man who builds his name
    On ruins of another's fame.
    Thus prudes, by characters o'erthrown,
    Imagine that they raise their own.
    Thus Scribblers, covetous of praise,
    Think slander can transplant the bays.
    • John Gay, Fables (1727), Fable XLV, "The Poet and the Rose"
  • When squint-eyed Slander plies the unhallow'd tongue,
    From poison'd maw when Treason weaves his line,
    And Muse apostate (infamy to song!)
    Grovels, low muttering, at Sedition's shrine.
  • Alexander von Humboldt (seeing a newspaper containing slanderous falsehoods against Jefferson on the President's desk) : Why do you not have the fellow hung who dares to write these abominable lies?
    Thomas Jefferson : What! hang the guardians of the public morals? No, sir, — rather would I protect the spirit of freedom which dictates even that degree of abuse. Put that paper into your pocket, my good friend, carry it with you to Europe, and when you hear any one doubt the reality of American freedom, show them that paper, and tell them where you found it.
    Humboldt : But is it not shocking that virtuous characters should be defamed?
    Jefferson : Let their actions refute such libels. Believe me, virtue is not long darkened by the clouds of calumny; and the temporary pain which it causes is infinitely overweighed by the safety it insures against degeneracy in the principles and conduct of public functionaries. When a man assumes a public trust, he should consider himself as public property.
    • Conversation reported in B.L. Rayner, Life of Jefferson (1834), p. 356. The exact date is not known, but the conversation took place in one of several meetings with the President during Humboldt's visit to Washington, D.C., from June 1 to June 27, 1804.
  • The breath
    Of accusation kills an innocent name,
    And leaves for lame acquittal the poor life,
    Which is a mask without it.
  • 'T was Slander filled her mouth with lying words,
    Slander, the foulest whelp of Sin.
  • Truth is generally the best vindication against slander.
    • Abraham Lincoln, reportedly when requested to dismiss Montgomery Blair, Postmaster-General, in Bartlett's Familiar Quotations, 10th ed. (1919).
  • It takes your enemy and your friend, working together, to hurt you to the heart; the one to slander you and the other to get the news to you.
  • This is not a book. This is libel, slander, defamation of character. This is not a book, in the ordinary sense of the word. No, this is a prolonged insult, a gob of spit in the face of Art, a kick in the pants to God, Man, Destiny, Time, Love, Beauty ... what you will.
  • Silence to man and prayer to God are the best cures for the evil of slander.

External links

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1911 encyclopedia

Up to date as of January 14, 2010

From LoveToKnow 1911

LIBEL and Slander, the terms employed in English law to denote injurious attacks upon a man's reputation or character by words written or spoken, or by equivalent signs. In most early systems of law verbal injuries are treated as a criminal or quasi-criminal offence, the essence of the injury 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 XII. 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 contumely or insult. In the later Roman jurisprudence, which has, on this point, exercised considerable influence over modern systems of law, verbal injuries are dealt with in the edict under two heads. The first comprehended defamatory and injurious statements made in a public manner (convicium contra bones 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 injuries was long confined to a civil action for a money penalty, which was .estimated according to the gravity 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 libr.i 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 peculiarly dangerous, and visited with very severe punishment, whether the matter contained in them were true or false.

The earlier history of the English law of defamation is some what obscure. Civil actions for damages seem to have been tolerably frequent so far back as the reign of Edward I. 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 was only finally abolished in the 19th 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 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, and the law with regard to each at the present time may now be considered.

Civil Law. - The first important distinction encountered is that between slander and libel, between the oral and written promulgation of defamatory statements. In the former case the remedy is limited. The law will not take notice of every kind of abusive or defamatory language. It must be shown either that the plaintiff has suffered actual damage as a direct consequence of the slander, or that the imputation is of such a nature that we are entitled to infer damage as a necessary consequence. The special damage on which an action is founded for slanderous words must be of the nature of pecuniary loss. Loss of reputation or of position in society, or even illness, however clearly it may be traced to the slander, is insufficient. When we cannot prove special damage, the action for slander is only allowed upon certain strictly defined grounds. These are the imputation of a crime or misdemeanour which is punishable corporeally, e.g. by imprisonment; the imputation of a contagious or infectious disease; statements which tend to the disherison of an apparent heir (other cases of slander of title when the party is in possession requiring the allegation of special damage); the accusing a woman of unchastity (Slander of Women Act 1891); and, lastly, slanders directed against a man's professional or business character, which tend directly to prejudice him in his trade, profession, or means of livelihood. In the latter case the words must either be directly aimed at a man in his business or official character, or they must be such as necessarily to imply unfitness for his particular office or occupation. Thus words which merely reflect generally upon the moral character of a tradesman or professional man are not actionable, but they are actionable if directed against his dealings in the course of his trade or profession. But, in the case of a merchant or trader, an allegation which affects his credit generally is enough, and it has been held that statements are actionable which affect the ability or moral characters of persons who hold offices, or exercise occupation which require a high degree of ability, or infer peculiar confidence. In every case the plaintiff must have been at the time of the slander in the actual exercise of the occupation or enjoyment of the office with reference to which the slander is supposed to have affected him.

The action for libel is not restricted in the same way as that for slander. Originally there appears to have been no essential distinction between them, but the establishment of libel as a criminal offence had probably considerable influence, and it soon became settled that written defamatory statements, or pictures and other signs which bore a defamatory meaning, implied greater malice and deliberation, and were generally fraught with greater injury than those made by word of mouth. The result has been that the action for libel is not limited to special grounds, or by the necessity of proving special damage. It may be founded on any statement which disparages a man's private or professional character, or which tends to hold him up to hatred, contempt or ridicule. In one of the leading cases, for example, the plaintiff obtained damages because it was said of him that he was a hypocrite, and had used the cloak of religion for unworthy purposes. In another case a charge of ingratitude was held sufficient. In civil cases the libel must be published by being brought by the defendant under the notice of a third party; it has been held that it is sufficient if this has been done by gross carelessness, without deliberate intention to publish. Every person is liable to an action who is concerned in the publication of a libel, whether he be the author, printer or publisher; and the extent and manner of the publication, although not affecting the ground of the action, is a material element in estimating the damages.

It is not necessary that the defamatory character of the words or writing complained of should be apparent on their face. They may be couched in the form of an insinuation, or may derive their sting from a reference to circumstances understood by the persons to whom they are addressed. In such a case the plaintiff must make the injurious sense clear by an averment called an innuendo, and it is for the jury to say whether the words bore the meaning thus ascribed to them.

In all civil actions for slander and libel the falsity of the injurious statements is an essential element, so that the defendant is always entitled to justify his statements by their truth; but when the statements are in themselves defamatory, their falsity is presumed, and the burden of proving their truth is laid upon the defendant. There are however a large class of false defamatory statements, commonly called privileged, which are not actionable on account of the particular circumstances in which they are made. The general theory of law with regard to these cases is this. It is assumed that in every case of defamation intention is a necessary element; but in the ordinary case, when a statement is false and defamatory, the law presumes that it has been made or published with an evil intent, and will not allow this presumption to be rebutted by evidence or submitted as matter of fact to a jury. But there are certain circumstances in which the natural presumption is quite the other way. There are certain natural and proper occasions on which statements may be made which are in themselves defamatory, and which may be false, but which naturally suggest that the statements may have been made from a perfectly proper motive and with entire belief in their truth. In the cases of this kind which are recognized by law, the presumption is reversed. It lies with the plaintiff to show that the defendant was actuated by what is called express malice, by an intention to do harm, and in this case the question is not one of legal inference for the court, but a matter of fact to be decided by the jury. Although, however, the theory of the law seems to rest entirely upon natural presumption of intention, it is pretty clear that in determining the limits of privilege the courts have been almost wholly guided by considerations of public or general expediency.

In some cases the privilege is absolute, so that we cannot have an action for defamation even although we prove express malice. Thus no action of this kind can be maintained for statements made in judicial proceedings if they are in any sense relevant to the matter in hand. In the same way no statements or publications are actionable which are made in the ordinary course of parliamentary proceedings. Papers published under the authority of parliament are protected by a special act, 3 & 4 Vict. c. 9, 1840, which was passed after a decree of the law courts adverse to the privilege claimed. The reports of judicial and parliamentary proceedings stand in a somewhat different position, which has only been attained after a long and interesting conflict. The general rule now is that all reports of parliamentary or judicial proceedings are privileged in so far as they are honest and impartial. Even park proceedings, in so far as they take place in public, now fall within the same rule. But if the report is garbled, or if part of it only is published, the party who is injured in consequence is entitled to maintain an action, and to have the question of malice submitted to a jury.

Both absolute and qualified privilege are given to newspaper reports under certain conditions by the Law of Libel Amendment Act 1888. The reports must, however, be published in a newspaper as defined in the Newspaper Libel and Registration Act 1881. Under this act a newspaper must be published "at intervals not exceeding twenty-six days." By s. 3 of the act of 1888 fair and accurate reports of judicial proceedings are absolutely privileged provided that the report is published contemporaneously with the proceedings and no blasphemous or indecent matter is contained therein. By s. 4 a limited privilege is given to fair and accurate reports (I) of the proceedings of a bona fide public meeting lawfully held for a lawful purpose and for the furtherance and discussion of any matter of public concern, even when the admission thereto is restricted; (2) of any meeting, open either to the public or to a reporter, of a vestry, town council, school board, board of guardians, board of local authority, formed or constituted under the provisions of any act of parliament, or of any committee appointed by any of these bodies; or of any meeting of any commissioners authorized to act by letters patent, act of parliament, warrant under royal sign manual, or other lawful warrant or authority, select committees of either House of parliament, justices of the peace in quarter sessions assembled for administrative or deliberative purposes; (3) of the publication of any notice or report issued for the information of the public by any government office or department, officer of state, commissioner of police or chief constable, and published at their request. But the privilege given in s. 4 does not authorize the publication of any blasphemous or indecent matter; nor is the protection available as a defence if it be proved that the reports or notices were published maliciously, in the legal sense of the word, or the defendant has been requested to insert in the newspaper in which the report was issued a reasonable letter or statement by way of contradiction or explanation, and has refused or neglected to do so. Moreover, nothing in s. 4 is to interfere with any privilege then existing, or to protect the publication of any matter not of public concern, or in cases where publication is not for the public benefit. Consequently no criminal prosecution should be commenced where the interests of the public are not affected. By the Law of Libel Amendment Act 1888, s. 8, no criminal prosecution for libel is to be commenced against any newspaper proprietor publisher or editor unless the order of a judge at chambers has been first obtained. This protection does not cover the actual writer of the alleged libel.

In private life a large number of statements are privileged so long as they remain matters of strictly private communication. It is difficult to define the limits of private privilege without extensive reference to concrete cases; but generally it may be said that it includes all communications made in performance of a duty not merely legal but moral or social, answers to bona fide inquiries, communications made by persons in confidential relations regarding matters in which one or both are interested,, and even statements made within proper limits by persons in the bona fide prosecution of their own interest. Common ex- amples of this kind of privilege are to be found in answer to inquiries as to the character of servants or the solvency of a trader, warnings to a friend, communications between persons who are jointly interested in some matters of business. But in every case care must be taken not to exceed the limits of publication required by the occasion, or otherwise the privilege is lost. Thus defamatory statements may be privileged when made to a meeting of shareholders, but not when published to others who have no immediate concern in the business.

In a few instances in which an action cannot be maintained even by the averment of malice, the plaintiff may maintain an action by averring not only malice but also want of reasonable and probable cause. The most common instances of this kind are malicious charges made in the ordinary course of justice and malicious prosecutions. In such cases it would be contrary to public policy to punish or prevent every charge which was made from a purely malicious motive, but there is no reason for protecting accusations which are not only malicious, but destitute of all reasonable probability.

Criminal Law. - Publications which are blasphemous, immoral or seditious are frequently termed libels, and are punishable both at common law and by various statutes. The matter, however, which constitutes the offence in these publications lies beyond our present scope. Libels upon individuals may be prosecuted by criminal information or indictment, but there can be no criminal prosecution for slander. So far as concerns the definition of libel, and its limitation by the necessity of proving in certain cases express malice, there is no substantial difference between the rules which apply to criminal prosecutions and to civil actions, with the one important exception (now considerably modified) that the falsity of a libel is not in criminal law an essential element of the offence. If the matter alleged were in itself defamatory, the court would not permit inquiry into its truth. The sweeping application of this rule seems chiefly due to the indiscriminate use, in earlier cases, of a rule in Roman law which was only applicable to certain modes of publication, but has been supported by various reasons of general policy, and especially by the view that one main reason for punishing a libel was its tendency to provoke a breach of the peace.

An important dispute about the powers of the jury in cases of libel arose during the 19th century in connexion with some well-known trials for seditious libels. The point is familiar to readers of Macaulay in connexion with the trial of the seven bishops, but the cases in which it was brought most prominently forward, and which led to its final settlement, were those against Woodf all (the printer of Junius), Wilkes and others, and especially the case against Shipley, the dean of St Asaph (21 St. Tr. 925), in which the question was fought by Lord Erskine with extraordinary energy and ability. The controversy turned upon the question whether the jury were to be strictly confined to matters of fact which required to be proved by evidence, or whether in every case they were entitled to form their own opinion upon the libellous character of the publication and the intention of the author. The jury, if they pleased, had it in their power to return a general verdict of guilty or not guilty, but both in theory and practice they were subject in law to the directions of the court, and had to be informed by it as to what they were to take into consideration in determining upon their verdict. There is no difficulty about the general application of this principle in criminal trials. If the crime is one which is inferred by law from certain facts, the jury are only concerned with these facts, and must accept the construction put upon them by law. Applying these principles to the case of libel, juries were directed that it was for the court to determine whether the publication fell within the definition of libel, and whether the case was one in which malice was to be inferred by construction of law. If the case were one in which malice was inferred by law, the only facts left to the jury were the fact of publication and the meaning averred by innuendoes; they could not go into the question of intention, unless the case were one of privilege, in which express malice had to be proved. In general principle, therefore, the decisions of the court were in accordance with the ordinary principles of criminal law. But there were undoubtedly some peculiarities in the case of libel. The sense of words, the inferences to be drawn from them, and the effect which they produce are not so easily defined as gross matters of fact. They seem to belong to those cases in which the impression made upon a jury is more to be trusted than the decision of a judge. Further, owing to the mode of procedure, the defendant was often punished before the question of law was determined. But, nevertheless, the question would scarcely have been raised had the libels related merely-to private matters. The real ground of dispute was the liberty to be accorded to political discussion. Had the judges taken as wide a view of privilege in discussing matters of public interest as they do now, the question could scarcely have arisen; for Erskine's whole contention really amounted to this, that the jury were entitled to take into consideration the good or bad intent of the authors, which is precisely the question which would now be put before them in any matter which concerned the public. But at that time the notion of a special privilege attaching to political discussion had scarcely arisen, or was confined within very narrow limits, and the cause of free political discussion seemed to be more safely entrusted to juries than to courts. The question was finally settled by the Libel Act 1792, by which the jury were entitled to give a general verdict on the whole matter put in issue.

Scots Law

In Scots law there were originally three remedies for defamation. It might be prosecuted by or with the concurrence of the lord advocate before the court of justiciary; or, secondly, a criminal remedy might be obtained in the commissary (ecclesiastical) courts, which originally dealt with the defender by public retractation or penance, but subsequently made use of fines payable to their own procurator or to the party injured, these latter being regarded as solatium to his feelings; or, lastly, an action of damages was cornpetent before the court of session, which was strictly civil in its character and aimed at the reparation of patrimonial loss. The first remedy has fallen into disuse; the second and third (the commissary courts being now abolished) are represented by the present action for damages or solatium. Originally the action before the court of session was strictly for damages - founded, not upon the animus injuriandi, but upon culpa, and could be defended by proving the truth of the statements. But in time the court of session began to assume the original jurisdiction of the commissary courts, and entertained actions for solatium in which the animus injuriandi was a necessary element, and to which, as in Roman law, the truth was not necessarily a defence. Ultimately the two actions got very much confused. We find continual disputes as to the necessity for the animus injuriandi and the applicability of the plea of veritas convicii, which arose from the fact that the courts were not always conscious that they were dealing with two actions, to one of which these notions were applicable, and to the other not. On the introduction of the jury court, presided over by an English lawyer, it was quite natural that he, finding no very clear distinction maintained between damage and solatium, applied the English plea of truth as a justification to every case, and retained the animus injuriandi both in ordinary cases and cases of privilege in the same shape as the English conception of malice. The leading and almost only differences between the English and Scots law now are that the latter makes no essential distinction between oral and written defamation, that it practically gives an action for every case of defamation, oral or written, upon which in England a civil action might be maintained for libel, and that it possesses no criminal remedy. In consequence of the latter defect and the indiscriminate application of the plea of veritas to every case both of damages and solatium, there appears to be no remedy in Scotland even for the widest and most needless publication of offensive statements if only they are true.

American Law. - American law scarcely if at all differs from that of England. In so far indeed as the common law is concerned, they may be said to be substantially identical. The principal statutes which have altered the English criminal law are represented by equivalent legislation in most American states.

See generally W. B. Odgers, Libel and Slander; Fraser, Law of Libel and Slander.


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