English defamation law
Modern libel and slander laws in many countries 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 as far back as the Statute of Gloucester in the reign of Edward I. The law of libel emerged during the reign of James I under Attorney General Edward Coke who started a series of libel prosecutions. Scholars frequently attribute strict English defamation law to James I's outlawing of duelling. From that time, both the criminal and civil remedies have been found 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 in a manner which causes them loss in their trade or profession, or damages their reputation. Allowable defences are justification, honest opinion, and privilege. A defamatory statement is presumed to be false, unless the defendant can prove its truth.
English defamation law puts the burden of proof on the defendant, and does not require the plaintiff to prove falsehood. For that reason, it has been considered an impediment to free speech in much of the developed world. In many cases of libel tourism, plaintiffs sued in England to censor critical works when their home countries would reject the case outright. In the United States, the 2010 SPEECH Act makes foreign libel judgements unenforceable and unrecognisable by U.S. courts if they don't comply with U.S. protections for freedom of speech and due process, which was made largely in response to the English laws.
The Defamation Act 2013 substantially changed English defamation law in recognition of these concerns, by narrowing the criteria for a successful claim, mandating evidence of actual or probable harm, and enhancing the scope of existing defences for website operators, public interest, and privileged publications. The 2013 law applies to causes of action occurring after its commencement on 1 January 2014.
History
The earlier history of the English law of defamation is somewhat obscure; Anglo-Saxon law practiced in England after the fall of the Roman Empire seemed to follow the idea of iniuria, allowing plaintiffs who had been insulted to accept monetary compensation instead of seeking revenge. Civil actions for damages seem to have been tolerably frequent as far back as the reign of Edward I. There was no distinction drawn between written and spoken words, and when no monetary penalty was involved, such cases fell within the old jurisdiction of the ecclesiastical courts, which were only finally abolished in the eighteenth century. It seems uncertain whether or not any generally applicable criminal process was in place.The crime of scandalum magnatum was established by the Statute of Westminster 1275, c. 34, but the first instance of criminal libel is generally agreed to be the De Libellis Famosis case, tried in the Star Chamber in the reign of James I by Edward Coke who, in his judgement on the case, said that a person's "good name... ought to be more precious to him than his life". The case centred around an "infamous" libel about John Whitgift, the late Archbishop of Canterbury. It was held that libel against a private person could be considered a crime if it could provoke revenge that would threaten a breach of the peace, that libel against the monarch or government could be illegal, even if true, because "it concerns not only the breach of the peace, but also the scandal of government", and that a libel against a public figure was a more serious offence than one against a private person. This set a precedent in common law that judges decided all factors except that of publication; therefore, a guilty verdict from a jury in a libel trial resolved only that the material had been published while the judge decided whether a libel had been committed.
The Libel Act 1843 enacted several codifications of defamation law in the UK, including the offer of an apology and the claim that the libel was without malice or neglect as mitigating evidence, as well as malicious and knowingly false libel as aggravating evidence.
Up until the Defamation Act 2013, Parliament had enacted defamation law reforms about every 50 years, with the Defamation Acts of 1996 and 1952 being the two most recent. Most of these reforms have focused on trying to alter the law around the high burden of proof on defendants and the large damages awarded in past cases, which critics have said stifles free speech, and perceived overreach of English courts when they exercise jurisdiction in cases which in reality have little connection to the UK, giving rise to 'libel tourism'.
The common law crimes of criminal libel and seditious libel were abolished for UK citizens by the Coroners and Justice Act 2009, and the crime of blasphemous libel was abolished as a crime by the Criminal Justice and Immigration Act 2008.
Volume of litigation
An increase in defamation litigation has been noted in England from the early seventeenth century. In the south of England, this litigation rose most sharply in cases of sexual slander and were notable for the increasing number of women pursuing litigation in defence of their sexual reputation. In one respect, this pattern has been linked with increasing legal access for women. In another respect, however, it has been linked to the rise of "middling" traders in urban centres and an increasing concern with the defence of family reputation in which a woman's sexual integrity was coterminous with the integrity of her household. A similar pattern has been noted in the northern English jurisdictions but this rise seems not to have occurred until the latter years of the seventeenth century.Criminal offence
See defamatory libel.Present law
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 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.A statement can include an implication; for instance, a photograph of a particular politician accompanying a headline reading "Corrupt Politicians" could be held as an allegation that that politician was personally corrupt. Once it is shown that a statement was published, and that it has a defamatory meaning, that statement is presumed to be false unless the defendant is able to raise a defence to his defamatory act.
Under English law, because companies are legal persons they can sue on the basis of libel the same as natural persons. Cases supporting this principle go as far back as the 19th century, such as South Hetton Coal Co. Ltd. v. North Eastern News Ass'n Ltd. , and extend to more recent cases such as Bognor Regis U.D.C. v. Campion and the McLibel case, when McDonald's sued several protesters.
The 2006 case of Keith-Smith v Williams confirmed that discussions on the Internet were public enough for libel to take place.
Slander actionable per se
While in libel cases there is no burden to prove damage done to reputation, there generally is in slander cases. In some specific circumstances however, there is no need to prove that damage was caused by a slander; this is called 'slander actionable per se'. The Faulks Committee, a parliamentary committee set up to propose reforms to UK defamation law, recommended in 1975 that this distinction between libel and slander should be abolished.The following are actionable without proof of special or actual damage:
- Words imputing a crime punishable with imprisonment
- Words "calculated to disparage" a person in their office, calling, trade, business, or profession. Established in section 2 of the Defamation Act 1952.
- Words "calculated to cause pecuniary damage" and published in writing or permanent form, and
- Words "calculated to cause pecuniary damage to the plaintiff in respect of any office, profession, calling, trade or business held or carried on by him at the time of the publication".
Publication in a permanent form
Under section 166 of the Broadcasting Act 1990 and section 4 of the Theatres Act 1968, statements both within a performance of a play or in any programme included in a programme service can be considered publication in permanent form. Neither of these sections apply to Scotland.Section 1 of the Defamation Act 1952 had allowed the "broadcasting of words by means of wireless telegraphy" to be considered publication in permanent form. This section was repealed and replaced by the Broadcasting Act 1990.
Burden of proof on the defendant
In the common laws of libel, it is frequently said that the "burden of proof" in English defamation law falls upon the defendant. However the Defamation Act 2013 added a requirement that the claimant show "serious harm" was caused or was likely to be caused to the claimant's reputation, adding a significant burden of proof upon the claimant.While specific legal requirements may differ depending on local laws, the common laws of libel generally only require the claimant to prove that a statement was made by the defendant, and that it was defamatory – a relatively easy element to prove. The claimant is not required to prove that the content of the statement was false. On the other hand, as a defendant in the common laws of libel, proving the truth of the statement would be considered an affirmative defence.
If a claimant is found guilty of launching a defamation lawsuit despite that the statement at hand is, in fact, accurate, the defendant may launch a counterclaim for fraud, recovery of unjustified settlement funds, and other factors. An example is that of the Sunday Times and cyclist Lance Armstrong. Armstrong was paid £300,000 by the newspaper after a libel claim in 2004. Following the report by USADA in 2012 on Armstrong's doping, the Sunday Times stated it might attempt to recover the money it lost and might counterclaim Armstrong for fraud. Armstrong ultimately settled with the paper for an undisclosed sum in 2013.
In certain instances, including but not limited to those involving public interests or responsible journalism, the burden of proof will be increasingly complex and require additional proceedings that may remain ongoing for years and come at significant costs.