False light laws are "intended primarily to protect the plaintiff's mental or emotional well-being." If a publication of information is false, then a tort of defamation might have occurred. If that communication is not technically false but is still misleading then a tort of false light might have occurred.
In the later Roman jurisprudence, from which many of modern laws descend, verbal defamations are dealt within 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 offense 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 offense lay in the imputation itself, not in the manner of its publication. The truth was therefore a sufficient defense, 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 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 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.
"Defamation" is the general term used internationally, and is used in this article where it is not necessary to distinguish between "slander" and "libel". Libel and slander both require publication. The fundamental distinction between libel and slander lies solely in the form in which the defamatory matter is published. If the offending material is published in some fleeting form, as by spoken words or sounds, sign language, gestures and the like, then this is slander. If it is published in more durable form, for example in written words, film, compact disc (CD), DVD, blogging and the like, then it is considered libel.
In Britain, the Italian anarchist Errico Malatesta was convicted of criminal libel for denouncing the Italian state agent Ennio Belelli in 1912.
In Canada, though the law has been applied on only six occasions in the past century, all of those cases involve libellants attached to the state (police officers, judges, prison guards). In the most recent case, Bradley Waugh and Ravin Gill were charged with criminal libel for publicly accusing six prison guards of the racially motivated murder of a black inmate.
Even if a statement is derogatory, there are circumstances in which such statements are permissible in law.
Another important aspect of defamation is the difference between fact and opinion. Statements made as "facts" are frequently actionable defamation. Statements of opinion or pure opinion are not actionable. In order to win damages in a libel case, the plaintiff must first show that the statements were "statements of fact or mixed statements of opinion and fact" and second that these statements were false. Conversely, a typical defense to defamation is that the statements are opinion. One of the major tests to distinguish whether a statement is fact or opinion is whether the statement can be proved true or false in a court of law. If the statement can be proved true or false, then, on that basis, the case will be heard by a jury to determine whether it is true or false. If the statement cannot be proved true or false, the court may dismiss the libel case without it ever going to a jury to find facts in the case.
In some systems, however, notably the Philippines, truth alone is not a defense. Some U.S. statutes preserve historical common law exceptions to the defense of truth to libel actions. These exceptions were for statements "tending to blacken the memory of one who is dead" or "expose the natural defects of one who is alive".
It is also necessary in these cases to show that there is a well-founded public interest in the specific information being widely known, and this may be the case even for public figures. Public interest is generally not "that which the public is interested in", but rather "that which is in the interest of the public".
There are two types of privilege in the common law tradition:
In addition to the above, the defendant may claim that the allegedly defamatory statement is not actually capable of being defamatory—an insulting statement that does not actually harm someone's reputation is prima facie not libelous. Also, the public figure doctrine, also called the absence of malice rule, may be used as a defense.
Under United States law, libel generally requires five key elements. The plaintiff must prove that the information was published, the plaintiff was directly or indirectly identified, the remarks were defamatory towards the plaintiff's reputation, the published information is false, and that the defendant is at fault.
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.
Defamation laws may come into tension with freedom of speech, leading to censorship or chilling effects where publishers fear lawsuits, or loss of reputation where individuals have no effective protection against reckless or unfounded allegations. Article 10 of the European Convention on Human Rights permits restrictions on freedom of speech which are necessary for the protection of the reputation or the rights of others.
Jurisdictions resolve this tension in different ways, in particular in determining where the burden of proof lies when unfounded allegations are made. The power of the internet to disseminate comment, which may include malicious comment, has brought a new focus to the issue.
There is a broader consensus against laws which criminalize defamation. Human rights organizations, and other organizations such as the Council of Europe and Organization for Security and Co-operation in Europe, have campaigned against strict defamation laws which criminalize defamation. The European Court of Human Rights has placed restrictions on criminal libel laws because of the freedom of expression provisions of the European Convention on Human Rights. One notable case was Lingens v. Austria (1986).
Modern libel and slander laws as implemented in many but not all Commonwealth nations, 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. Civil actions for damages seem to have been relatively frequent so far back as the reign of Edward I (1272–1307), though it is unknown whether any generally applicable criminal process was in use. The first fully-reported case in which libel is affirmed generally to be punishable at common law was tried during the reign of James I. From that time we find both the criminal and civil remedies in full operation.
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 (the truth of the statement), fair comment (whether the statement was a view that a reasonable person could have held), and privilege (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 using due care) to collect compensatory damages. In order to collect punitive damages, all individuals must prove actual malice.
In Scots law, as in other jurisdictions which base themselves on the civil law tradition, there is no distinction between libel and slander, and all cases are simply defamation. The equivalent of the defence of justification is "veritas".
In German law, there is no distinction between libel and slander. Germany is a leader in Europe in enforcement of its defamation law,, and lawsuits are increasing. The relevant sections of Germany's law are §90 (Denigration of the President of State), §90a (Denigration of the State and its Symbols), §90b (Unconstitutional denigration of the Organs of the Constitution), §185 ("insult"), §186 (Defamation of character), §187 (Defamation with deliberate untruths), §188 (Political defamation with increased penalties for offending against paras 186 and 187), §189 (Denigration of a deceased person), §190 (Defamation by means of a non-proven criminal conviction), §192 ("insult" with true statements), §193 (Claim to defamation by rightful interests), §194 (The Application for a criminal prosecution under these paragraphs), §199 (Cases of exchange of verbal abuse), and §200 (Method of proclamation). Paragraph 188 has been criticized for allowing certain public figures additional protection against criticism.
Defamation law in the United States is much less plaintiff-friendly than its counterparts in European and the Commonwealth countries, due to the enforcement of the First Amendment. In the United States, a comprehensive discussion of what is and is not libel or slander is difficult, because the definition differs between different states, and under federal law. Some states codify what constitutes slander and libel together into the same set of laws. Criminal libel is rare or nonexistent, depending on the state. Defenses to libel that can result in dismissal before trial include the statement being one of opinion rather than fact or being "fair comment and criticism". Truth is always a defense.
Most states recognize that some categories of statements are considered to be defamatory per se, such that people making a defamation claim for these statements do not need to prove that the statement was defamatory.
The four (4) categories of slander per se are (i) accusing someone of a crime; (ii) alleging that someone has a foul or loathsome disease; (iii) adversely reflecting on a person’s fitness to conduct her business or trade; and (iv) imputing serious sexual misconduct (especially the chastity of a woman). Once again, all you would have to prove is that someone had published the statement to a third party. No proof of special damages is required.
In 2001, a Singapore bank was fined SG$2 million (approx. 1 million euros or 1 million US$ at the time) for accidentally publishing a mildly libelous statement during the heated discussion of a takeover bid. The mistake was corrected very quickly, and there was no intent to do harm. In fact, it was reported that no harm seems to have been done. Nevertheless, the offended parties were awarded SG$1 million each. Apparently confirming the stringency of Singapore’s defamation law, Business Times declined to report on the matter because one of the libeled parties objected.
Since the introduction of the uniform defamation laws in 2005 the distinction between slander and libel has been abolished.
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 that defamed an Australian in his or her 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.
Slander has been occasionally used to justify (and with some success) physical reaction, however usually the punishment for assault is only slightly reduced when there is evidence of provocation.
Among the various common law jurisdictions, some Americans have presented a visceral and vocal reaction to the Gutnick decision. On the other hand, the decision mirrors similar decisions in many other jurisdictions such as England, Scotland, France, Canada and Italy.
Controversial uniform legislation was passed in Australia in 2005 severely restricting the right of corporations to sue for defamation (see, eg, Defamation Act 2005 (Vic), s 9). The only corporations excluded from the general ban are those not for profit or those with less than 10 employees and not affiliated with another company.
As is the case for most Commonwealth jurisdictions, Canada follows English law on defamation issues (although the law in the province of Quebec has roots in both the English and the French tradition). At common law, defamation covers any communication that tends to lower the esteem of the subject in the minds of ordinary members of the public. Probably true statements are not excluded, nor are political opinions. Intent is always presumed, and it is not necessary to prove that the defendant intended to defame. In Hill v. Church of Scientology of Toronto (1995), the Supreme Court of Canada rejected the actual malice test adopted in the US case New York Times Co. v. Sullivan. Once a claim has been made, the defendant may avail him or herself to a defense of justification (the truth), fair comment, or privilege. Publishers of defamatory comments may also use the defense of innocent dissemination where they had no knowledge of the nature of the statement, it was not brought to their attention, and they were not negligent.
In Quebec, defamation was originally grounded in the law inherited from France. To establish civil liability for defamation, the plaintiff must establish, on a balance of probabilities, the existence of an injury, a wrongful act, and of a causal connection between the two. A person who has made defamatory remarks will not necessarily be civilly liable for them. The plaintiff must further demonstrate that the person who made the remarks committed a wrongful act. Defamation in Quebec is governed by a reasonableness standard, as opposed to strict liability; a defendant who made a false statement would not be held liable if it was reasonable to believe the statement was true.
Criminal laws prohibiting protests at funerals, sedition, false statements in connection with elections, and the use of profanity in public, are also often used in contexts similar to criminal libel actions.
The boundaries of a court's power to hold individuals in "contempt of court" for what amounts to alleged defamatory statements about judges or the court process by attorneys or other people involved in court cases is also not well established in many common law countries.