3 Origins of defamation law

In most early systems of law verbal injuries were 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 Twelve 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 abuse or insult.

In the later Roman jurisprudence, from which many of our modern laws descend, 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 bonos 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 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 pasquil s, 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.

4 English law

4.1 Development of English defamation law

Modern libel and slander laws as implemented in many but not all Commonwealth nations, in the United States, and in the Republic of IrelandThe Republic of Ireland ( Irish: Poblacht na hEireann is the common term for a state which covers approximately five-sixths of the island of Ireland, off the coast of northwest Europe. It is the western-most state of the European Union. The remaining sixt, are originally descended from English defamation law .

The earlier history of the English law of defamation is somewhat obscure. Civil actions for damages seem to have been tolerably frequent so far back as the reign of Edward IYork Minster King Edward I of England ( June 17, 1239 July 7, 1307), popularly known as Longshanks and the Hammer of the Scots , achieved fame as the monarch who conquered Wales and who kept Scotland under English domination. He reigned from 1272 to 1307, (1272–1307). 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 courtAn ecclesiastical court (also called "Court Christian") is any of certain courts having jurisdiction mainly in spiritual or religious matters. In the middle ages in many areas of Europe these courts had much wider powers than before the development of nats, which were only finally abolished in the eighth 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 ChamberThis article is about the historical court of law. For the online collectible card game of the same name, see Star Chamber (game); for the film of the same name, see Star Chamber (film). The Star Chamber was an English court of law at the royal Palace of in the reign of James IJames VI of Scotland and I of England (Charles James) ( 19 June 1566 27 March 1625) was a King who ruled over England, Scotland and Ireland, and was the first Sovereign to reign in the three realms simultaneously. He ruled in Scotland as James VI from 24. 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.

4.2 English Admiralty law

In admiralty lawAdmiralty law (usually referred to as simply admiralty and also referred to as maritime law is a distinct body of law which governs maritime questions and offenses. Under conventions of international law, the flag flown by a ship generally determines the, a libel was the equivalent of a civil lawsuit. The plaintiff was referred to as the "libellant". The term has been rendered obsolete by the merger of the admiralty courts with tribunals of general jurisdiction and the adoption of simplified rules of civil procedure that specify "one form of action" for all claims.

4.3 Modern law

The leading modern English case on qualified privilege in the context of newspaper articles which are claimed to defame a public figure is now Reynolds v. Times Newspapers Ltd and Others, 1999 UKHL 45. (requires completion)

5 United States law

US defamation law is often less plaintiff-friendly than its counterparts in European and Commonwealth countries. This is because of the First Amendment's strong protection of free speech, which arose from the tradition of dissent that led to the American Revolutionary War. One very important distinction today is that European and Commonwealth jurisdictions adhere to a theory that every publication of a defamation gives rise to a separate claim, so that a 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 (see Defamation and intellectual property jurisdiction website).

In the United States, about 75% of defamation lawsuits are filed in state courts, and the remaining 25% in federal courts. A comprehensive discussion of what is and is not libel or slander is difficult, because each state's definition differs. Some states lump slander and libel together into the same set of laws. Some states have criminal libel laws on the books, though these are old laws which are infrequently prosecuted.

Most defendants in libel lawsuits are newspapers, which are involved in about twice as many lawsuits as are TV stations. Most plaintiffs are corporations, business people, entertainers and other public figures, and inmates. Most states do not allow defamation lawsuits to be filed if the allegedly defamed person is already deceased. None of the states allow the plaintiff to be a group of people.

In the various states, whether by case law or actual legislation, there are generally several "privileges" that can get a defamation case dismissed without proceeding to trial. These include the allegedly defamatory statement being one of opinion rather than fact; or being "fair comment and criticism", as it is important to society that everyone be able to comment on matters of public interest.

If a defamation lawsuit actually gets to trial, truth is an affirmative defense. Another is if the allegedly defamatory statement is not actually capable of being defamatory—an insulting statement that does not harm someone's reputation is prima facie not libelous. Another defense that is presented by accused media companies is "fault"—a series of court rulings led by New York Times Co. v. Sullivan (376 U.S. 254) established that for a plaintiff to win a libel ruling against a newspaper, "actual malice" or "reckless negligence" must be proved on the part of the paper if the statement in question is about a public official or public figure. In the case of a private figure, the plaintiff must merely prove negligence.

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.

5.1 History

Laws regulating slander and libel in the United States began to develop even before the American Revolution. In one of the most famous cases, New York publisher John Peter Zenger was imprisoned in 1734 for printing attacks on the governor of the colony. Zenger won his case by establishing that the truth is an absolute defense against libel charges. Previous English defamation law had not provided this guarantee.

Zenger's case also established that libel cases, though they were civil rather than criminal cases, could be heard by a jury, which would have the authority to rule on the allegations and to set the amount of monetary damages awarded.

Although the First Amendment of the U.S. Constitution was designed specifically to protect freedom of the press, the Supreme Court long neglected to use it to rule on libel cases, leaving libel laws mixed across the states. In 1964, however, the court issued an opinion in New York Times Co. v. Sullivan, dramatically changing the nature of libel law in the United States. In that case, the court determined that public officials could only win a suit for libel if they could demonstrate " actual malice" on the part of reporters or publishers. In that 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.

In 1974, in Gertz v. Robert Welch, Inc., (418 U.S. 323), the Supreme Court ruled that a plaintiff could not win a libel suit when the statement(s) in question were of opinion rather than fact. In the words of the court, "under the First Amendment, there is no such thing as a false idea". For example, contrast "I think Jo is a bad lawyer", which is opinion, with "Jo doesn't know the law", which is defamatory per se. In Gertz, the Supreme Court also established a mens rea or culpability requirement for defamation; states cannot impose strict liability because that would run afoul of the First Amendment. This holding differs significantly from most other common law jurisdictions, which still have strict liability for defamation.

In 1988, in Hustler Magazine v. Falwell, (485 U.S. 46), the Supreme Court ruled that a parody advertisement claiming Jerry Falwell had engaged in an incestuous act with his mother in an outhouse, while false, could not be subject to damages for emotional distress because the statement, in effect, was of a character as being so obviously ridiculous that it was clearly not true, and thus it could not be libelous if no one would seriously believe it. The court overturned a lower court's upholding of an award where the jury decided against the claim of libel but awarded damages for emotional distress.

6 Australian law

Australian law tends to follow English law on defamation issues, although there are differences introduced by statute. 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, which established that Internet-published foreign publications which defamed an Australian in his Australian reputation could be held accountable under Australian libel law, has gained worldwide attention and is often (although inaccurately, see for example Berezovsky v Forbes in England) said to be the first of its kind; the case was subsequently settled.

Among the various common law jurisdictions, some Americans have presented a visceral and vocal reaction to the Gutnick decision. It has been suggested that both the broad assertion of personal jurisdiction by Australia (which has a similar personal jurisdiction rule to most jurisdictions) and the underlying imposition of strict liability for defamation run counter to notions of fairness and due process that Americans consider to be fundamental aspects of their system of justice. On the other hand, the decision, which mirrors similar decisions in many other jurisdictions such as England, Scotland, France, and Italy, has been defended on the basis that those who choose to publish worldwide cannot complain if they are sued worldwide; and the existence of pro-defender defamation laws in America does not give Americans a licence to be free of the laws of other countries.

7 Canadian law

As with most Commonwealth jurisdictions, Canada also follows English law on defamation issues (although the law in the province of Quebec has different roots). A recent Supreme Court of Canada case, Hill v. Church of Scientology of Toronto (1995), has reviewed the relationship of the common law of defamation and its relation to the Canadian Charter of Rights and Freedoms. It is also the largest libel award ( CAD 1,600,000 against the church) upheld in Canada and part of the ongoing legal problems of Scientology. This reasoning in this case specifically rejects the actual malice test in New York Times Co. v. Sullivan citing criticism of it, not only in the United States, but in other countries as well.

8 See also

• Chilling effect
• International Freedom of Expression eXchange

9 External links

• Defamation on the Internet A New Zealand site with many references to papers dealing with issues relating to defamation on the internet.

• Defamation and intellectual property jurisdiction A Scottish site, dealing with jurisdiction in international defamation cases, with copious references to caselaw in many countries.

• Defamation law reform in Australia Proposals by the Attorney General of Australia for defamation law reform, identifying existing defects.

• Newsdesk Introduction to English defamation law.

• Human Rights Update English site, with notes of recent cases in which the Human Rights Convention has affected defamation law in Europe.

Journalism ethics Tort law

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