ⓘ Defamation

                                     

ⓘ Defamation

Defamation is the oral or written communication of a false statement about another that unjustly harms their reputation and usually constitutes a tort or crime. In several countries, including South Korea and Sweden, as well as the U.S. state of Louisiana, communicating a true statement can also be considered defamation.

Under common law, to constitute defamation, a claim must generally be false and must have been made to someone other than the person defamed. Some common law jurisdictions also distinguish between spoken defamation, called slander, and defamation in other media such as printed words or images, called libel. In the United States, false light laws protect against statements which are not technically false but are misleading.

In some jurisdictions, defamation is treated as a crime rather than a civil wrong. The United Nations Human Rights Committee ruled in 2012 that the libel law of one country, the Philippines, was inconsistent with Article 19 of the International Covenant on Civil and Political Rights as well as urging that "State parties should consider the decriminalization of libel". In Saudi Arabia, defamation of the state, or a past or present ruler, is punishable under terrorism legislation.

A person who defames another may be called a "defamer", "libeler", "slanderer" or rarely a "famacide". The term libel is derived from the Latin libellus literally "small book", or "booklet".

                                     

1. Overview

As of 2017, at least 130 UNESCO member states retained criminal defamation laws. In 2017, the Organization for Security and Cooperation in Europe OSCE Office of the Representative on Freedom of the Media issued a report on criminal defamation and anti-blasphemy laws among its member states, which found that defamation is criminalized in nearly three-quarters 42 of the 57 OSCE participating states. Many of the laws pertaining to defamation include specific provisions for harsher punishment for speech or publications critical of heads of state, public officials, state bodies and the state itself. The OSCE report also noted that blasphemy and religious insult laws exist in around one third of OSCE participating states; many of these combine blasphemy and religious insult with elements of hate speech legislation.

In Africa, at least four member states decriminalized defamation between 2012 and 2017. The ruling by the African Court of Human and Peoples’ Rights in Lohe Issa Konate v. the Republic of Burkina Faso set a precedent in the region against imprisonment as a legitimate penalty for defamation, characterizing it as a violation of the African Charter on Human and Peoples’ Rights ACHPR, the International Covenant on Civil and Political Rights ICCPR and the treaty of the Economic Community of West African States ECOWAS.

Countries in every region have moved to advance the criminalization of defamation by extending legislation to online content. Cybercrime and anti-terrorism laws passed throughout the world have led to bloggers appearing before courts, with some serving time in prison. The United Nations, OSCE, Organisation of American States OAS and African Commission on Human and Peoples’ Rights Special Rapporteurs for Freedom of Expression stated in a joint declaration in March 2017 that "general prohibitions on the dissemination of information based on vague and ambiguous ideas, including false news or non-objective information, are incompatible with international standards for restrictions on freedom of expression.and should be abolished."

                                     

2.1. Types Slander

The common law origins of defamation lie in the torts of "slander" harmful statement in a transient form, especially speech and "libel", 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. 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 or the like, then it is slander.

                                     

2.2. Types Libel

Libel is defined as defamation by written or printed words, pictures, or in any form other than by spoken words or gestures. The law of libel originated in the 17th century in England. With the growth of publication came the growth of libel and development of the tort of libel.

                                     

2.3. Types Cases involving libel

An early example of libel is the case of John Peter Zenger in 1735. Zenger was hired to publish New York Weekly Journal. When he printed another mans article that criticized William Cosby, who was then British Royal Governor of Colonial New York, Zenger was accused of seditious libel. The verdict was returned as Not Guilty on the charge of seditious libel, because it was proven that all the statements Zenger had published about Cosby had been true, so there was not an issue of defamation. Another example of libel is the case of New York Times Co. v. Sullivan 1964. The U.S. Supreme Court overruled a state court in Alabama that had found The New York Times guilty of libel for printing an advertisement that criticized Alabama officials for mistreating student civil rights activists. Even though some of what The Times printed was false, the court ruled in its favor, saying that libel of a public official requires proof of actual malice, which was defined as a "knowing or reckless disregard for the truth".



                                     

2.4. Types Proving libel

There are several things a person must prove to establish that libel has taken place. In the United States, a person must prove that the statement was false, caused harm, and was made without adequate research into the truthfulness of the statement. These steps are for an ordinary citizen. For a celebrity or public official, a person must prove the first three steps, and that the statement was made with the intent to do harm or with reckless disregard for the truth, which is usually specifically referred to as "actual malice".

                                     

2.5. Types Scandalum magnatum

At one time, the honor of peers was especially protected by the law; while defamation of a commoner was known as libel or slander, the defamation of a peer or of a Great Officer of State was called scandalum magnatum, literally "the scandal of magnates."



                                     

3. 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 British free expression advocacy group, has published global maps 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.

There can be regional statutes that may differ from the national norm. For example, in the United States, defamation is generally limited to the living. However, there are 7 states that have criminal statutes regarding defamation of the dead.

The Organization for Security and Co-operation in Europe OSCE 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.

In a 2012 ruling on a complaint filed by a broadcaster who had been imprisoned for violating Philippine libel law, the United Nations Commission on Human Rights held that the criminalization of libel without provision of a public figure doctrine – as in Philippine criminal law – violates freedom of expression and is inconsistent with Article 19 of the International Covenant on Civil and Political Rights.



                                     

3.1. Criminal defamation Early cases of criminal defamation

Questions of group libel have been appearing in common law for hundreds of years. One of the earliest known cases of a defendant being tried for defamation of a group was the case of Rex v. Orme and Nutt 1700. In this case, the jury found that the defendant was guilty of libeling several subjects, though they did not specifically identify who these subjects were. A report of the case told that the jury believed that "where a writing … inveighs against mankind in general, or against a particular order of men, as for instance, men of the gown, this is no libel, but it must descend to particulars and individuals to make it libel." This jury believed that only individuals who believed they were specifically defamed had a claim to a libel case. Since the jury was unable to identify the exact people who were being defamed, there was no cause to identify the statements were a libel.

Another early English group libel which has been frequently cited is King v. Osborne 1732. In this case, the defendant was on trial "for printing a libel reflecting upon the Portuguese Jews." The printing in question claimed that Jews who had arrived in London from Portugal burned a Jewish woman to death when she had a child with a Christian man, and that this act was common. Following Osbornes anti-Semitic publication, several Jews were attacked. Initially, the judge seemed to believe the court could do nothing since no individual was singled out by Osbornes writings. However, the court concluded that "since the publication implied the act was one Jews frequently did, the whole community of Jews was defamed." Though various reports of this case give differing accounts of the crime, this report clearly shows a ruling based on group libel. Since laws restricting libel were accepted at this time because of its tendency to lead to a breach of peace, group libel laws were justified because they showed potential for an equal or perhaps greater risk of violence. For this reason, group libel cases are criminal even though most libel cases are civil torts.

                                     

4. History

From early times, people have comprehended defamatory and injurious statements made in a public manner convicium adversus bonos mores.

The Praetorian Edict, codified circa 130 A.D., declared that an action could be brought up for shouting at someone contrary to good morals: "qui, adversus bonos mores convicium cui fecisse cuiusve opera factum esse dicitur, quo adversus bonos mores convicium fieret, in eum iudicium dabo." 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. Any act apt to bring another person into disrepute gave rise to an actio injurarum. 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. 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.

Roman law was aimed at giving sufficient scope for the discussion of a mans 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.

In Anglo-Saxon England, slander was punished by cutting out the tongue.

                                     

5.1. Defenses Truth

In many legal systems, adverse public statements about legal citizens presented as fact must be proven false to be defamatory or slanderous/libellous. Proving adverse public character statements to be true is often the best defense against a prosecution for libel 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. Some jurisdictions decline to recognize any legal distinction between fact and opinion. 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, relying on opinion privilege. 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 defense 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 veracity was therefore considered irrelevant. Section 6 of the Libel Act 1843 allowed the proven truth of the allegation to be used as a valid defense in criminal libel cases, but only if the defendant also demonstrated that publication was for the "Public Benefit".

In some systems, however, notably the Philippines, truth alone is not a defense.

It is also necessary in these cases to show that there is a well-founded public interest in the specific information being widely known, and this may be the case even for public figures. Public interest is generally not "what the public is interested in", but rather "what is in the interest of the public".

Noonan v. Staples is sometimes cited as precedent that truth is not always a defense to libel in the U.S., but the case is actually not valid precedent on that issue because Staples did not argue First Amendment protection, which is one theory for truth as complete defense, for its statements. The court assumed in this case that the Massachusetts law was constitutional under the First Amendment without it being argued by the parties.

In a 2012 ruling involving Philippine libel law, the United Nations Commission on Human Rights commented, "Penal defamation laws should include defense of truth."



                                     

5.2. Defenses 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. Privilege is any circumstance that justifies or excuses a prima facie tort. It can be said that privilege recognizes a defendants action stemmed from an interest of social importance – and that society wants to protect such interests by not punishing those who pursue them. Privilege can be argued whenever a defendant can show that he acted from a justifiable motive. While some privileges have long been recognized, the court may create a new privilege for particular circumstances – privilege as an affirmative defense is a potentially ever-evolving doctrine. Such newly created or circumstantially recognized privileges are referred to as residual justification privileges.

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. Another example would be that a professor – acting in good faith and honesty – may write an unsatisfactory letter of reference with unsatisfactory information. 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.
                                     

5.3. Defenses Other defenses

Defenses 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.
  • 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.
  • Statute of limitations. Most jurisdictions require that a lawsuit be brought within a limited period of time. If the alleged libel occurs in a mass media publication such as a newspaper or the Internet, the statute of limitations begins to run at the time of publication, not when the plaintiff first learns of the communication.
  • Mere vulgar abuse is an insult that is not necessarily defamatory because it is not intended to be taken literally or believed, or likely to cause real damage to a reputation. Vituperative statements made in anger, such as calling someone "an arse" during a drunken argument, would likely be considered mere vulgar abuse and not defamatory.
  • 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.
  • Consent is an uncommon defense and makes the claim that the claimant consented to the dissemination of the statement.
  • 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. In the US fair comment is a common law defense, and it has been argued has been superseded by constitutional defenses.
  • 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.
  • 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. Thus, a delivery service cannot be held liable for delivering a sealed defamatory letter. The defense can be defeated if the lack of knowledge was due to negligence.
  • Claimant is incapable of further defamation – e.g., the claimants 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.
  • Slander per-se: is an exception to Slander presume general damages. Slander per-se states that an individual has: 1. A loathsome disease, 2. Business improprieties, 3. Committed a crime or have been in prison for a crime, 4. Committed sexual improprieties/impotent.

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 someones reputation is prima facie not libelous. Also, the public figure doctrine, also called the absence of malice rule, may be used as a defense.



                                     

5.4. Defenses Public figure doctrine absence of malice

In the United States, 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 in the United States, the statement must have been published knowing it to be false or with reckless disregard to its truth also known as actual malice.

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 plaintiffs 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.

                                     

6. Freedom of speech

Defamation laws may come into tension with freedom of speech, leading to censorship or chilling effects where publishers fear lawsuits. 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.

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.

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. 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.

                                     

7.1. Laws by jurisdiction Internationally

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

  • 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.
  • Everyone has the right to the protection of the law against such interference or attacks.
                                     

7.2. Laws by jurisdiction 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.

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".

                                     

7.3. Laws by jurisdiction China

Article 246 of the Criminal Law of the Peoples Republic of China 中华人民共和国刑法 criminalizes defamation.

                                     

7.4. Laws by jurisdiction Japan

Defamation can be prosecuted either criminally or civilly, according to what is followed under Article 230-1 of the Criminal Code of Japan. An example case can be found at, heard in the Federal Court of Australia. This judgment was significant as it demonstrated that tweets, consisting of even as little as three words, can be defamatory, was held in this case.

                                     

7.5. Laws by jurisdiction New Zealand

New Zealand received English law with the signing of the Treaty of Waitangi in February 1840. The current Act is the Defamation Act 1992 which came into force on 1 February 1993 and repealed the Defamation Act 1954.

New Zealand law allows for the following remedies in an action for defamation: compensatory damages; an injunction to stop further publication; a correction or a retraction; and in certain cases, punitive damages. Section 28 of the Act allows for punitive damages only when a there is a flagrant disregard of the rights of the person defamed.

As the law assumes that an individual suffers loss if a statement is defamatory, there is no need to prove that specific damage or loss has occurred. However, Section 6 of the Act allows for a defamation action brought by a corporate body to proceed only when the body corporate alleges and proves that the publication of the defamation has caused or is likely to cause pecuniary loss to that body corporate.

The following defenses are allowed:

  • Honest opinion – where a defendant must prove that the opinion expressed is the defendants genuine opinion. The defense of honest opinion shall not necessarily fail if the defendant was motivated with malice.
  • Truth – where the defendant proves that the words were true, or not materially different from the truth; or where all or any of the matter contained in a publication taken as a whole was in substance true, or was in substance not materially different from the truth.
  • Absolute privilege – regarding the publication of proceedings in Parliament, and judicial proceedings and other legal

matters.

                                     

7.6. Laws by jurisdiction Religious law

The Hebrew term lashon hara is the halakhic term for derogatory speech about another person. Lashon hara differs from defamation in that its focus is on the use of true speech for a wrongful purpose, rather than falsehood and harm arising. By contrast, hotzaat shem ra "spreading a bad name", also called hotzaat diba, consists of untrue remarks, and is best translated as "slander" or "defamation". Hotzaat shem ra is worse, and consequently a graver sin, than lashon hara.

In Roman Catholic theology there are seen to be two sins, that of lying and that of impinging on a persons right to a reputation. It is considered to be closed to detraction, the sin of revealing previously unknown faults or sins of another person to a third person.

                                     

8. Related torts

Some jurisdictions have a separate tort or delict of 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 courts 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.

                                     
  • The Defamation Act 2013 c 26 is an Act of the Parliament of the United Kingdom, which reformed English defamation law on issues of the right to freedom
  • The Anti - Defamation League ADL formerly known as the Anti - Defamation League of B nai B rith is an international Jewish non - governmental organization
  • The Defamation Ordinance 1887 The Defamation Act 1957 The Defamation Act 1954 The Defamation Act 1961 No.40 The Defamation Act 2009 The Defamation Act
  • people making a defamation claim for these statements do not need to prove that the statement was defamatory. See section Defamation per se. Laws regulating
  • resolutions entitled Combating defamation of religions In 2005, Yemen introduced a resolution entitled Combating Defamation of Religions in the General
  • Cyber defamation is not a specific criminal offense, misdemeanor or tort, but rather defamation or slander conducted via digital media, usually through
  • The Defamation of Strickland Banks is the second studio album from English singer and rapper Plan B. It was released on 12 April 2010 by 679 Recordings
  • Israeli and U.S. politics. A major focus of the film is the Anti - Defamation League. Defamation won Best Documentary Feature Film at the 2009 Asia Pacific Screen
  • The Good Name Redoubt Polish Anti - Defamation League or Polish League Against Defamation Polish: Fundacja Reduta Dobrego Imienia - Polska Liga Przeciw
  • associated with the Mafia. The American Italian Anti - Defamation League were sued by the original Anti - Defamation League, a Jewish organization founded to discredit
  • made under this section: The Defamation Act 1996 Commencement No. 1 Order 1999 S.I. 1999 817 C. 26 The Defamation Act 1996 Commencement No. 2