Laws of Defamation from around the world

The Historical Background of Defamation

Modern libel and slander laws, as implemented in many Commonwealth nations as well as 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 and civil actions for

damages seem to have been relatively frequent as far back as the reign of Edward I.

As set out by Lord Atkin in Sim v. Stretch1, a defamatory statement is one which tends to lower a

person, "in the estimation of right-thinking members of society." It is not that the statement be

made to the person in regard and it must be communicated to another. Tort law protects one's

interest in preserving his/her reputation. In Canada, the law of defamation permits actions for

Libel and Slander against those who seek to damage another’s reputation. In Hill v. Church of

Scientology2, where the origins of defamation law were reviewed

The character of the law relating to libel and slander in the 20th century is essentially the product

of its historical development up to the 17th century, subject to a few refinements such as the

introduction and recognition of the defenses of privilege and fair comment. From the foregoing

we can see that a central theme through the ages has been that the reputation of the individual is

of fundamental importance. As Professor R. E. Brown writes in The Law of Defamation in

Canada3

"No system of civil law can fail to take some account of the right to have one's reputation

remain untarnished by defamation." Some form of legal or social constraints on

defamatory publications "are to be found in all stages of civilization, however imperfect,

remote, and proximate to barbarism."

1 Sim v. Stretch [1936] 2 All ER 1237, at 12402 Hill v. Church of Scientology[1995] 2 S.C.R. 11303 The Law of Defamation in Canada (2nd ed. 1994), at p. 1-4:

From the advent of the popular press in the nineteenth century, courts have increasingly grown

concerned with protecting reputations from the threat of mass communications, the Internet

much like the printing press once was is the next technological peril.

The International Perspective of Defamation

The   International Covenant on Civil and Political Rights   (ICCPR)

The International Covenant on Civil and Political Rights (ICCPR) is a multilateral treaty adopted

by the United Nations General Assembly on December 16, 1966, which came into force on

March 23, 1976. It commits its parties to respect the civil and political rights of individuals,

including the right to life, freedom of religion, freedom of speech, freedom of assembly, electoral

rights and rights to due process and a fair trial. The covenant has as of October 2009, at least 72

signatories and 165 parties.

The covenant lays down 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 honor and reputation.”

The covenant also lays down in article 14 that,

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

The ICCPR is global body and its interpretation of defamation may be considered as a

standardized interpretation for it. However, the greatest flaw of such a covenant is found in its

inability to be enforced.

Defamation in the United Kingdom

The crime of scandalum magnatum or spreading false reports about the magnates of the realm

was established by statutes as far as the 12th century, 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 during the 16th century. In that particular case, no English authorities are

cited, except for 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 cause a breach of the peace, and it seems probable that a not-too-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.

Modern libel and slander laws, descended from English defamation law and English law allows

actions for libel to be brought in the High Court for any published statements which are alleged

to defame a named or identifiable individual (or individuals) in a manner which causes them loss

in their trade or profession, or causes a reasonable person to think worse of him, her or them.

Allowable defenses are justification (i.e. the truth of the statement), fair comment (i.e. whether

the statement was a view that a reasonable person could have held), and privilege (i.e. 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). A private individual must only prove

negligence (not exercising due care) to collect compensatory damages. In order to collect

punitive damages, all individuals must prove actual malice.

A landmark case I defamatory law in the UK, The McLibel case is the colloquial term for

McDonald's Restaurants v Morris & Steel, which is a long-running English court action for libel

filed by McDonald's Corporation against environmental activists Helen Steel and David Morris

over a pamphlet critical of the company. The original case lasted seven years, making it the

longest-running court action in English history.

Notable advancements have been made in the recent past in the preview of defamation laws and

most recently, Criminal libel was abolished on 12 January 2010 by section 73 of the Coroners

and Justice Act 2009 as it was observed that there were only a few instances of the criminal libel

law being applied. The United Kingdom has also been one of the frontrunners in establishing

norms related to usage of defamatory material on the internet and it was in the 2006 case of

Keith-Smith v Williams confirmed that discussions on the Internet were public enough for libel

to take place.

Defamation in the USA

Defamation laws in the United States of America have their roots, predictably in the common

law of England and the essence of defamation law is borrowed from the tenets of defamation

laws of England. However, Laws regulating slander and libel in the United States began to

develop even before the American Revolution in the 18th century. The defining moment of

development of defamation laws in the USA is however considered to be Zenger’s Case in 1734.

In this case, New York publisher John Peter Zenger was imprisoned for 8 months in 1734 for

printing attacks on the governor of the colony. Zenger won his case and was acquitted by jury in

1735 under the counsel of Andrew Hamilton. The case established the precedent that the truth

should be an absolute defense against libel charges, a guarantee which previous English

defamation law had not provided

In regard to this case Governor Morris, a major contributor in the framing of the U.S.

Constitution famously said,

"The trial of Zenger in 1735 was the germ of American freedom, the morning star of that

liberty which subsequently revolutionized America."

More importantly, The First Amendment of the U.S. Constitution was designed specifically to

protect freedom of the press. However, the Supreme Court neglected to use it to rule on libel

cases and for most of the history of the United States libel laws were based upon the traditional

common law of defamation inherited from the English legal system, mixed across the states.

It was the 1964 New York Times Co. v. Sullivan4 case in 1964 that facilitated in dramatically

changing the nature of libel law in the United States. In that case, the court determined that

public officials could win a suit for libel only if they could demonstrate "actual malice" on the

part of reporters or publishers. In this case, "actual malice" was defined as "knowledge that the

information was false" or that it was published "with reckless disregard of whether it was false or

not." This decision was later extended to cover "public figures", although the standard is still

considerably lower in the case of private individuals.

4 New York Times Co. v. Sullivan, 376 U.S. 254 (1964)

In the judgment of the case, it was held that the rule of law applied by the courts was found

constitutionally deficient for failure to provide the safeguards for freedom of speech and of the

press that are required by the First and Fourteenth Amendments in a libel action brought by a

public official against critics of his official conduct and it was further held that under the proper

safeguards the evidence presented in this case is constitutionally insufficient to support the

judgment for the defendant.

Later cases have built upon the New York Times rule, so that now the law balances the rules of

defamation law with the interests of the First Amendment. The result is that whether defamation

is actionable depends on what was said, who it was about, and whether it was a subject of public

interest and thus protected by the First Amendment.

In present times, Defamation law in the United States is comparatively much less plaintiff-

friendly than its counterparts in the UK and the Commonwealth countries due to the enforcement

of the First Amendment. One very important distinction today is that European and

Commonwealth jurisdictions adhere to a theory that every publication of defamation gives rise to

a separate claim, so for instance defamation on the Internet could be sued on in any country in

which it was read, while American law only allows one claim for the primary publication.

Most defendants in defamation lawsuits are newspapers or publishers, which are involved in

about twice as many lawsuits as are television stations. Most plaintiffs are corporations,

businesspeople, entertainers and other public figures, and people involved in criminal cases,

usually defendants or convicts but sometimes victims as well. In no state can a defamation claim

be successfully maintained if the allegedly defamed person is deceased. Another complication

which is peculiar the USA is that a comprehensive discussion of what is and is not libel or

slander is difficult, because the definition begins differs between different states. This said most

states codify what constitutes slander and libel together into the same set of laws and some states

have criminal libel laws on the books, though these are old laws which are very infrequently

prosecuted.

There is frequent debate as to the ambit of defamation laws and its extent of enforceability. In the

USA, many suits are brought against defamatory material which has been published on the

internet. While the existing Section 230 of the Communications Decency Act of 1996 generally

immunizes from liability parties that create forums on the Internet in which defamation occurs

from liability for statements published by third parties, there is a long standing debate as to the

exact enforceability of defamation law on virtual spaces.

It can be said the advent and increasing popularity of the internet has influenced the development

of defamation laws in the recent past creating new facets of previously nonexistent laws while

steadily clearing the cobwebs of ancient rudimentary law.

Religious Laws related to Defamation

Religions or religious text have for centuries recognized and commended the act of speaking

harshly or ‘defaming’ an innocent person. Almost every religion lays down the principle that

committing the act ‘defamation’ is a sin and is punishable.

Lashon hara is the prohibition in Jewish Law of telling gossip. 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, Motzi Shem Ra ("spreading a bad name") consists of

untrue remarks, and is akin to slander or defamation.

In Roman Catholic theology Detraction is defined, primarily as the sin of revealing previously

unknown faults or sins of another person to a third person. This differs from the sin of calumny,

which is lying about faults or sins that a person doesn't really have. While defamation is illegal in

many modern systems of law, detraction is not. A society that operated totally under Catholic

principles, for example, would not have nearly the same content in news reporting as is shown in

most modern societies. The exception to this rule is when telling someone about the previously

unknown faults of another can prevent greater harm, such as when a person is about to be chosen

for a leadership position.

Bibilography

Books

Articles

Mclibel: a case study in English defamation law by Marlene Arnold Nicholson

Defamation - libel and slander. The Liberty Guide to Human Rights. Liberty. 2002-10-21.

Websites

Http://libelforms.org

http://www.citmedialaw.org/legal-guide/substantial-truth

Unfettered Press: Libel Law in the United States