Defamation
Libel and slander are two forms of defamation (or defamation of character), which is the legal term for the tort of making a communication that would tend to lower its hearers' or readers' opinion(s) of the person(s) the communication was about. When the communication is in writing, it is properly termed "libel". If made via the spoken word, the correct term is "slander". Both acts share a common legal history, although they may be treated differently under modern legal systems. The statement need not be derogatory in itself to be actionable, as where it constitutes invasion of privacy or portrays the person in a false light, as by calling a prominent Democrat a Republican.
Many nations have various civil and criminal penalties for libel and slander, and different conditions for determining whether an offense has occurred. Some legal systems, including some in the United States, require in some situations that the subject of the communication prove, in a civil court, that the defendant made statement with "malice", meaning either believing it was false or with "reckless disregard" for whether it was. There are four categories of statement, however, that are defamatory per se, which means they are so inherently derogatory that a plaintiff need prove only that they were made: Those are statements accusing a person of:
- committing a crime
- having a loathsome disease
- being unchaste (in some jurisdictions this still applies only to females)
- being bad at their trade or business
Other systems, such as that of England require only that the statements be false and defamatory (more on English Defamation law can be found below.)
Origins of libel and slander 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 pasquils, 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.
Development of English defamation law
Modern libel and slander laws, as implemented in many Western nations, are generally 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 I. 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 courts, 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 Chamber in the reign of James I. 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. For more on modern English law, see English defamation law.
American law
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., 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.