The law of defamation targets false communication, whether by words, pictures, gestures, or music, that causes one’s reputation to be harmed among a respectable segment of society. The law, especially in Euro-American nations, traditionally distinguished between libel (written) and slander (spoken). Recovery for slander generally required proof of special damages, or monetary loss, because the mere spoken word was thought to carry less potential for harm than the written word.
In many jurisdictions, including the United States, the distinction between libel and slander has been blurred and no longer holds great importance. In jurisdictions that maintain the distinction between libel and slander, however, an important and unresolved question is whether defamatory Internet communications constitute libel or slander.
The law of defamation in a society reflects, to a great extent, assumptions about the relative value of reputation versus freedom of expression. For example, the US Supreme Court in New York Times Co. v. Sullivan takes a constitutional “actual malice” approach to protecting unknowing false and defamatory statements about public officials and public figures. Few nations follow the uniquely media-friendly approach of American libel law, but contemporary defamation laws around the world tend to protect freedom of expression more so than in the past.
Sanctions for libel and slander date to the earliest recorded history. For most contemporary common-law and civil-law systems, the roots of libel and slander may be traced to the Roman Empire. Roman law greatly influenced development of early European civil law systems. By about the twelfth century, Spanish municipal codes began to prohibit verbal insults, listing prohibited words.
Roman law likewise influenced development of common-law libel and slander. During the reign of Henry III (1216 –1272) in England, libel was defined as “the use of abusive language addressed to a man publicly or the act of inciting a crowd to beset a man’s house or to mob the man himself.” In the sixteenth century, the infamous Star Chamber of England determined to stamp out dueling by vigorously prosecuting the sending of challenges. The Star Chamber propagated both civil and criminal punishments for defamation.
Criminal and Civil Sanctions for Defamation
Under the Star Chamber, civil actions for defamation replaced physical confrontation. Meanwhile, the Star Chamber also punished defamation as a crime in order to prevent sedition. Under this criminal defamation law, truth was no defense. In fact, true statements were more likely than false ones to provoke breach of the peace.
Criminal libel fell into disuse in America in the twentieth century as most state legislatures and judges viewed the proper sanction for defamation to be monetary damages rather than incarceration. But criminal libel remains on the books in more than a dozen US states even into the twenty-first century. Significantly, however, Mexico decriminalized libel to protect freedom of the press in 2007.
A 1990 global survey concluded that more than 100 nations punished, as a crime, the “insult” of government and government officials. Insult laws differ from criminal libel laws in that insult laws do not require the information to be false and instead focus on protecting “honor and dignity” even in the face of true but reputationally harmful statements.
Defamation in Diverse Judicial Systems
Basic Elements of Defamation And Defenses Under US Approach
In US law, a plaintiff must prove that the statement in question was (1) false, (2) likely to cause reputational harm among right-thinking members of society, (3) factual in nature rather than mere opinion or incapable of objective verification, (4) made “of and concerning” the plaintiff, (5) communicated to a third party, and (6) made with the requisite degree of fault. The United States, like many nations, allows not only individuals but also corporations to sue for libel; remedies may be available for product disparagement.
After US Supreme Court holdings in New York Times Co. v. Sullivan and subsequent cases, the First Amendment to the US Constitution prohibits liability for statements about public officials or public figures unless the plaintiff can prove “actual malice,” defined as knowledge of falsity or reckless disregard for the truth. Liability may be imposed for statements about private individuals with a showing of mere negligence, but the First Amendment prohibits strict liability.
Media defendants may invoke several common-law privileges. The fair report privilege prevents liability for fair and accurate descriptions of judicial, executive, and legislative proceedings, even if the original statements made in those settings turn out to be false. Opinion, or fair comment, is also privileged as long as statements are purely opinion and not factual in nature.
“Responsible Journalism” As a Libel Defense in England
At English common law, certain statements – accusing someone of lying, committing a crime, or having a loathsome disease – were libelous per se, meaning they were not capable of innocent meaning and required no additional information for defamatory meaning to be evident. Libel per quod, on the other hand, required extrinsic evidence: stating that a woman is pregnant would not harm her reputation unless additional information (that she is married but her husband has been out of the country for 10 months, for example) is known. Practically speaking, contemporary sanctions do not differ for libel per se and libel per quod.
With respect to falsity, English common law required only substantial truth, meaning minor inconsistencies were excused. The substantial truth doctrine is preserved today in the United States, but England and most nations other than the United States place the burden of proving truth on the communicator. A 2006 international libel and privacy handbook documented that truth is an absolute or qualified defense in 15 of 19 nations surveyed.
In 1999 the British House of Lords, in Reynolds v. Times Newspapers Limited, established “responsible journalism” criteria to measure whether media are entitled to a qualified privilege to report potentially defamatory information. The criteria include seriousness of the allegation, extent to which the matter is of public concern, source of information, steps taken to verify information, and presence of claimant comment, among others. English media defendants still must overcome the presumption of falsity and damage.
In the 2006 case Jameel v. Wall Street Journal Europe, the House of Lords wrote in Sullivanlike language that a newspaper’s story about US monitoring of a Saudi businessman’s bank accounts was not defamation because the matter was one of public interest, the defamation was justified, and reporting methods were responsible. Jameel strongly endorsed application of the Reynolds criteria to protect responsible investigative reporting on matters of public concern notwithstanding reputational harm and falsity.
Communist China: Socialist Approach to Libel Law?
While guaranteeing freedom of expression as a right, the Chinese Constitution of 1982 explicitly protects a right of personal dignity that includes liberty from insult and false incrimination. In China, where the media are part of the state power in a communist society, libel is a tort of strict liability. The law punishes as defamation not only false statements of fact but also malicious tarnishing of another’s image and insulting of another’s reputation. Significantly, however, no injury to reputation is presumed.
Chinese law does not require that an individual be identified by name or image in order to sue for libel. Accounts cloaked as fiction but based on reality are potentially defamatory if a specific person is readily identifiable by acquaintances. Group libel and libel of the deceased are recognized.
As in the common law countries, the fair report privilege, and fair comment have been accepted as libel defenses. But prominent individuals are not held to a higher standard in proving fault, and expression on matters of public interest are not afforded a greater degree of protection. Defamation is present if the communicator acted with negligence, in that he or she failed to live up to the standard of care that would have been expected from one in his or her position.
The one-party China strictly forbids seditious libel, as the 2002 Regulation on the Administration of Press and Publication states. Further, the media are required to follow directives from the Chinese Communist Party on what should not be published, including criticism of the Party.
Japan: Confucianism in Libel Law
As compared with the Anglo-American concept of reputation as a right of individuals, Japanese look at their reputational interests in relation to the groups to which they belong. Thus, Japanese view defamation as a loss of face to their familial group on the basis of Confucian tradition.
The present Japanese Constitution was modeled after the US Constitution. It guarantees freedom of expression, but that freedom can be qualified under the “public welfare” justification for its restriction. Truth is no defense to criminal defamation unless it relates to the public interest. The Civil Code makes defamation an unlawful act, i.e., tort. It provides for pecuniary compensation and other “suitable measures,” such as public apology and injunction. The US “actual malice” doctrine has not been accepted in Japan.
Compared with the United States and other western liberal democracies, libel litigation in Japan is relatively rare, although it has become an increasing concern to news media in recent years. One explanation for the relatively small number of libel cases in Japan is sociocultural: many Japanese still feel they should not trouble the media, a powerful institution in society, with claims for reputational injury. Interestingly, criminal libel is often preferred to civil libel because criminal libel prosecution is less costly and more prompt.
International Law On the Sullivan Libel Rule
International human rights tribunals, including the European Court of Human Rights, long resisted the adoption of a Sullivan “actual malice” rule. But in the 1986 case Lingens v. Austria, the European Court found that the criminal libel conviction of an Austrian journalist for criticizing a government official was in violation of the free expression provision of the European Convention on Human Rights. In 2004 the Inter-American Court of Human Rights, based in Costa Rica, reached similar conclusions in two cases of criminal libel convictions. The Court applied the American Convention on Human Rights; although the Court stopped short of adopting the Sullivan “actual malice” standard, it applied a test that produced a similar result.
Technology’s Effect On Libel and Slander
Contemporary problems of libel and slander include jurisdictional and other issues brought on by Internet communication. In the landmark 2002 case Dow Jones and Co. v. Gutnick, the High Court of Australia held that an Australian could sue an American publisher in Australia for defamation, based on the publication of online statements. In other words, the defamation occurred at the place of reception and not only at the place of publication.
Another thorny problem has involved the effect of the Internet on the common-law rule that a republisher of libel or slander was just as culpable as the originator. The US Congress in 1996 adopted a provision protecting Internet service providers from liability for libels propagated by users in electronic mail messages or on electronic bulletin boards. But few countries have gone that far in immunizing providers altogether.
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