defamation

defamation, in law, the act of communicating to a third party false statements about a person that result in damage to that person’s reputation. Libel and slander are the legal subcategories of defamation. Generally speaking, libel is defamation in written words, pictures, or any other visual symbols in a print or electronic medium. Slander is spoken defamation. The advent of early broadcast communications (radio and television) in the 20th century complicated this classification somewhat, as did the growth of social media beginning in the early 21st century.

Although defamation is a creation of English law (see common law), similar doctrines existed in ancient and medieval times. In Roman law, for example, abusive chants were punishable by death (see capital punishment). In early English and Germanic law, insults were punished by cutting out the offender’s tongue.

As late as the 18th century in England, acts of slander were limited to imputing crime or social disease and casting aspersions on professional competence, and no offenses were added until the Slander of Women Act in 1891 made imputation of unchastity illegal. French defamation laws historically have been more severe. An act of 1881, which inaugurated modern French defamation law, required conspicuous retraction of libelous material in newspapers and allowed truth as a defense only when publications concerned public figures. Modern German defamation is similar but generally allows truth as a defense. In Italy, truth seldom excuses defamation, which is criminally punishable there. In the United States, a charge of defamation of a public figure can be sustained only if the offending statement was made with “actual malice,” which the U.S. Supreme Court defined—in New York Times Co. v. Sullivan (1964)—as “knowledge that [the statement] was false or with reckless disregard of whether it was false or not.”

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Generally, defamation requires that the false statements be communicated without the consent of the allegedly defamed person. Words or pictures are interpreted according to common usage and in the context of publication. Injury only to feelings is not defamation; there must be loss of reputation. The defamed person need not be named but must be ascertainable. A class of persons is considered defamed only if the statements refer to all members of the class—particularly if the class is very small—or if particular members are specially imputed.

Although both libel and slander embrace the essentials of defamation, classifications are important because different liabilities arise under each. These differences generally reflect a policy of holding people less stringently to what they say than to what they write—so as to discourage trivial lawsuits—and a policy of preserving the credibility of the written word by stiffer penalties. The law also recognizes that written defamation is more likely to be injurious than “just talk.”

Defamation is punishable under criminal law as well as civil law. But, to be criminally punishable, it must be such that it would provoke a breach of the peace or in some other way directly prejudice the public interest.

Usually, liability for a defamation falls on everyone involved in its communication whose participation relates to content. Thus, not only writers but also editors, managers, and even owners are responsible for libelous publications, whereas vendors and distributors are not.

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In the United States, legal privilege arising from a special relationship or position relieves liability (U.S. senators, for example, cannot be prosecuted for anything they say on the floor of the Senate). In certain areas the mass media have broad discretion under the doctrine of “fair comment”—a common-law privilege to criticize and comment on matters of public interest—but such comment must pertain to a person’s work—not private affairs—and must be factually accurate.