Defamation

WritersPrintshop gets you published		Defamation			The website for writers WritersServices has over 1300 pages	To help you find Search Contents FAQs
Overview	Getting ready	Pre-production	Ebooks	Design	Publication	Print and supply
How to order	Marketing your book	Just thinking about it?	Main topic index	The Marketplace	Cost estimates	Editorial services

Legally speaking, defamation (which can include 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'.

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, including gestures and the like, then it is slander. If it is published in more durable form, including the web, then it is considered libel. But "Defamation" is the inclusive term that is used internationally.

Defamation is also the publication of privy information where one person reveals a matter which is not of public concern, and which would offend a 'reasonable person'. Unlike libel or slander, truth is not a defence for invasion of privacy.

So, these are guideline and you are very strongly advised to seek specialist, legal advice if you have even a slight doubt that you might offend. Powerful people and organisations defend their reputations aggressively. But as you can read below, things are a great deal more involved and the many boundaries are re-drawn by every case that comes to Court.

Criminal defamation

Many nations have criminal penalties for defamation which can be used to defend political leaders or State functionaries. National Courts are increasingly coming to recognise that their frontiers are no longer impervious to information so you might need to plan any journey with care if your work has offended any foreign potentate.

Roman jurisprudence, from which many modern legal systems have evolved, aimed to give scope for the discussion of a person's character, while protecting them from needless insult. The common law origins of defamation lie in the torts of slander - harmful statement in a transitory form, especially speech and libel - harmful statement in a fixed medium, especially writing, which gives a common law right of action.

Possible Defences against Defamation

Even if a statement is derogatory, some defences are permissible.

Truth
In many legal systems, adverse public statements presented as fact must be proven to be false in order to be defamatory. Therefore, proving character statements to be true is often the best defence. Statements made in good faith and with a reasonable belief that they were true are generally treated the same as true statements. However, the Court will decide on the reasonableness of the belief.

Opinion is a defence recognized in nearly every jurisdiction. An important aspect of defamation is the difference between fact and opinion. If the alleged defamation is an expression of opinion, rather than a statement of fact, defamation claims usually cannot be brought because opinions are inherently not provable. 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 a statement cannot be proved true or false, the court may dismiss the libel. However, some jurisdictions decline to recognise any legal distinction between fact and opinion.

But any defence that relies on proving truth may be said to have aggravated the harm if it fails to convince the Court. Truth provides an 'absolute defence' in the United States. The United States Supreme Court, in particular, has ruled that the First Amendment does not require recognition of an opinion privilege.

Privilege and malice
Privilege provides a complete bar. There are two types of privilege in the common law tradition:

	"Absolute privilege" covers evidence given in court (although it does not extend to perjury) or statements made in a session of the legislature.
	"Qualified privilege" may be available to the journalist in circumstances where knowledge of the facts is in the public interest, but does not protect statements that can be proven to have been made with malicious intent.

Privilege is also a defence when included in a witness testimony, legal arguments, and judicial decisions and statements made by a person to their spouse cannot be cause for a defamation claim.

Other possible defences

	A dead person can be defamed but they cannot sue! However, if it reflects on the family, estate or an organisation, they might make a case for defamation if they feel they have suffered damage.
	In order to win a libel case, the plaintiff normally has to show that the statements were made as a statements of fact and also that these statements were false. So a defence to defamation is that the statements were only opinion.
	Fair comment on a matter of public interest, or statements made with an honest belief in their truth on a matter of public interest, can be deployed as defences to a defamation claim. So, even if the arguments are logically unsound, a statement arising can be defended if a reasonable person could honestly entertain such an opinion. Take care it is opinion and cannot reasonably be asserted as fact.
	The degree of care expected with fact-checking will vary with the nature of the defendant: An ordinary person might rely on one newspaper but that newspaper would be expected to check multiple sources.
	Innocent dissemination can be tried if a defendant had no knowledge of the defamatory statement or any reason to believe the statement was defamatory.
	If the person already has a bad reputation, then a defence is that no further damage is possible since 'actual damage' is an essential element for a libel claim.
	'Public figure doctrine' has some special, if flexible, rules. So, if the statement is deemed to have been published knowing it to be 'false or with reckless disregard to its truth', it is known as actual malice.
	Consent is an uncommon defence because it makes the claim that the defendant actually consented to the dissemination of the statement.

Defamation and freedom of speech

Defamation laws come into conflict with freedom of speech. The Internet, with its instant and pervasive ability to disseminate comment, has brought a new focus to the issue of freedom of speech. The ability of complainants to force websites to be taken down by the service provider is a procedure that does not require any legal process. WritersServices has been forced to remove comments made by people who have been damaged by those who are misrepresenting themselves as agents and publishers.

Law makers have generally left it to the courts to strike the right balance. The United States constitution grants absolute rights which other acts circumscribe. Article 10 of the European Convention on Human Rights permits restrictions on freedom of speech which are necessary to protect the reputation, or the rights, of others who have no effective protection against reckless or unfounded allegations. In theory, the burden of proof is placed on the complainant but this is a gladiatorial contest which most writers and publishers should try very hard to avoid. Money makes much more noise in court than the truth especially in the UK Courts.

There is a broader consensus against laws which criminalise defamation so that it remains an action between two, civil parties rather than the state. 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. This reflect the great difficulty that attached to defining the issues. But laws prohibiting protests, election law, anti-terrorist legislation and the use of religious sensibilities can be employed to extend the reach of defamation into a criminal action.

So 'Caveat scriber'.

National peculiarities

United States

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: truth is always a defence.
The defendant is at fault.

This makes it less plaintiff-friendly than most other jurisdictions with the First Amendment providing a backstop for any claim. But there are different state and federal laws, plus the process is eye-wateringly expensive, and some categories of statements are considered to be defamatory per se, so that plaintiffs do not need to prove that the statement was defamatory.

England & Wales
The High Court in London has been called the litigation capital of the world (2009) possibly because a defamatory statement is presumed to be false unless the defendant can prove it is true. A public figure must prove actual malice, while a private individual needs only prove negligence on the part of the defendant to claim compensation. In order to collect punitive damages, all individuals must prove malice.
There have been some notable cases where libel cases have been lost even though subsequent events have proved the 'libels' to be true.
Happily, in 2010, a more sensible approach to 'fair comment' is being reasserted. But take special care to express your view as opinion and not fact.
Scotland

Scottish law is based on the civil law tradition, rather than common law. There is no distinction between libel and slander.

Australia

In 2002, the High Court of Australia's judgment established that Internet publications that defamed an Australian reputation could be held accountable under Australian libel law (Gutnick v Dow Jones).

Germany

German defamation law is comprehensive and has attempted to provide definitions. Writers, who recognise the subtle use that can be made of language, should beware.

Singapore
Singapore has perhaps the world's strongest libel laws and in 1996 made providers absolutely liable for the content placed on the Internet. You need perhaps to visit the place to understand the culture that underpins its many tight regulations.

Religious law
And religious law is another dangerous area at present because those 'prosecuting' alleged offences work outside the judicial process.

Legal checks you need to do

Libel factsheet

These are only guideline and you are very strongly advised to seek specialist legal advice if you have even a slight doubt. Powerful people and organisations defend their reputations aggressively.