Defamation is a communication that injures a third party's reputation and causes a legally redressable injury. The precise legal definition of defamation varies from country to country. It is not necessarily restricted to making assertions that are false, and can extend to concepts that are more abstract than reputation such as dignity and honour.
In the English-speaking world, the law of defamation traditionally distinguishes between libel (written, printed, posted online, published in mass media) and slander (oral speech). It is treated as a civil wrong (tort, delict), as a criminal offence, or both.
Defamation and related laws can encompass a variety of acts (from general defamation and insultas applicable to every citizen – to specialized provisions covering specific entities and social structures): Defamation can be against a legal person in general, including an insult against a legal person in general, or acts against public officials, state institutions (government, ministries, government agencies, armed forces), state symbols, the state itself, heads of state, religions (blasphemy), or the judiciary or legislature (contempt of court).
History
Defamation law has a long history stretching back to classical antiquity. While defamation has been recognized as an actionable wrong in various forms across historical legal systems and in various moral and religious philosophies, defamation law in contemporary legal systems can primarily be traced back to Roman and early English law.
Roman law was 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 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 punitive 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 is derived the 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 matters contained in them were true or false.
The Praetorian Edict, codified circa AD 130, 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."Digest 47. 10. 15. 2. (English: "against anyone who is said to have made an abusive outcry contrary to good morals, or by whose agency it is said to have been done, whereby an abusive outcry contrary to good morals was made, I will bring judgment against that person.") In this case, the offence was constituted by the unnecessary act of shouting. According to Ulpian, not all shouting was actionable. Drawing on the argument of Labeo, he asserted that the offence 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.Digest 47. 10. 15. 3–6. Any act apt to bring another person into disrepute gave rise to an actio injurarum.Digest 47. 10. 15. 25. 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 offence lay in the content of the imputation, 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.
In Anglo-Saxon England, whose legal tradition is the predecessor of contemporary common law jurisdictions, slander was punished by cutting out the tongue. Historically, while defamation of a commoner in England was known as libel or slander, the defamation of a member of the English aristocracy was called scandalum magnatum, literally "the scandal of magnates".
Human rights Following the Second World War and with the rise of contemporary international human rights law, the right to a legal remedy for defamation was included in Article 17 of the United Nations International Covenant on Civil and Political Rights (ICCPR), which states that:
This implies a right to legal protection against defamation; however, this right co-exists with the right to freedom of opinion and expression under Article 19 of the ICCPR as well as Article 19 of the Universal Declaration of Human Rights. Article 19 of the ICCPR expressly provides that the right to freedom of opinion and expression may be limited so far as it is necessary "for respect of the rights or reputations of others". Consequently, international human rights law provides that while individuals should have the right to a legal remedy for defamation, this right must be balanced with the equally protected right to freedom of opinion and expression. In general, ensuring that domestic defamation law adequately balances individuals' right to protect their reputation with freedom of expression and of the press entails: Providing for truth (i.e., demonstrating that the content of the defamatory statement is true) to be a valid defence, Recognizing reasonable publication on matters of public concern as a valid defence, and Ensuring that defamation may only be addressed by the legal system as a tort. In most of Europe, 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. Additionally, restrictions of freedom of expression and other rights guaranteed by international human rights laws (including the European Convention on Human Rights (ECHR)) and by the constitutions of a variety of countries are subject to some variation of the three-part test recognized by the United Nations Human Rights Committee which requires that limitations be: 1) "provided by law that is clear and accessible to everyone", 2) "proven to be necessary and legitimate to protect the rights or reputations of others", and 3) "proportionate and the least restrictive to achieve the purported aim". This test is analogous to the Oakes Test applied domestically by the Supreme Court of Canada in assessing whether limitations on constitutional rights are "demonstrably justifiable in a free and democratic society" under Section 1 of the Canadian Charter of Rights and Freedoms, the "necessary in a democratic society" test applied by the European Court of Human Rights in assessing limitations on rights under the ECHR, Section 36 of the post-Apartheid Constitution of South Africa, and Section 24 of the 2010 Constitution of Kenya. Nevertheless, the worldwide use of criminal and civil defamation, to censor, intimidate or silence critics, has been increasing in recent years.
General comment No. 34 In 2011, the United Nations Human Rights Committee published their General comment No. 34 (CCPR/C/GC/34)regarding Article 19 of the ICCPR.
Paragraph 47 states:
Defamation as a tort
While each legal tradition approaches defamation differently, it is typically regarded as a tort for which the offended party can take civil action. The range of remedies available to successful plaintiffs in defamation cases varies between jurisdictions and range from damages to court orders requiring the defendant to retract the offending statement or to publish a correction or an apology.
Common law Background Modern defamation in common law jurisdictions are historically derived from English defamation law. English law allows actions for libel to be brought in the High Court for any published statements alleged to defame a named or identifiable individual or individuals (under English law companies are legal persons, and allowed to bring suit for defamation) in a manner that causes them loss in their trade or profession, or causes a reasonable person to think worse of them.
Overview In contemporary common law jurisdictions, to constitute defamation, a claim must generally be false and must have been made to someone other than the person defamed.False: Ron Hankin, Navigating the Legal Minefield of Private Investigations: A Career-Saving Guide for Private Investigators, Detectives, And Security Police, Looseleaf Law Publications, 2008, p. 59. "There are five essential elements to defamation: (1) The accusation is false; and (2) it impeaches the subject's character; and (3) it is published to a third person; and (4) it damages the reputation of the subject; and (5) that the accusation is done intentionally or with fault such as wanton disregard of facts." Roger LeRoy Miller, Gaylord A. Jentz, Business Law Today: The Essentials, Cengage Learning, 2007, p. 115. "In other words, making a negative statement about another person is not defamation unless the statement is false and represents something as a fact (for example, 'Vladik cheats on his taxes') rather than a personal opinion (for example, 'Vladik is a jerk')." Michael G. Parkinson, L. Marie Parkinson, Law for advertising, broadcasting, journalism, and public relations, Routledge, 2006, p. 273. "Simplifying a very complicated decision, the court said that because the plaintiff must prove a statement is false in order to win an action in defamation, it is impossible to win an action in defamation if the statement, by its very nature, cannot be proven false."