Defamation, Libel and Slander - What You Need to Know

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Date published: 8 Jun 2020
by DocPro Legal
Last Update: 3 Jan 2021

Sales to your online business have been growing steadily in the past year, then suddenly it plummeted. Did Google just update its search algorithms, or was my payment gateway down? You searched hard for the reason and found out that someone has been spreading malicious rumours about your business online. Can I sue for defamation? Would it constitute slander or libel?

 

Defamation is one of the most common civil trials that arise out of business operation. There are two main forms of defamation: slander and libel. To identify whether your business has been libelled or slandered you must first identify whether you were defamed. Hence, this article will outline what the difference is between libel and slander. 

 

A. What is Defamation?

 

Defamation is a spoken, written or published untrue statement that damages one’s reputation. Defamation of character happens when something untrue and damaging is presented as a fact to someone else. Generally, a defamatory statement:

  • tends to lower the victim in the estimation of a right-thinking member of society generally;
  • tends to make them shun or avoid the victim;
  • subjects the victim to public hatred, contempt or ridicule; or
  • demeans the victim in his or her profession or business.

Defamation is under the area of tort which focuses on persona or property. To show defamation you need to prove a false statement that is dispensed as truth, and such representation has been communicated to a third party which causes injury or damage to your character or business.

 

For the sake of illustration, imagine that Hugo has a hot dog stand. Bob, a customer, claimed that ‘ Hugo hotdogs are made of actual dogs’. If Hugo Hotdogs are made of non-canine meat, then Bob has committed defamation against Hugo Hotdogs. Moreover, you can bring a claim for libel and slander as long as you are identifiable, and you don't need to be named in the allegedly defamatory statement.

 

However, not all actions are considered as defamation. Sometimes the statement could be a simple complaint. A simple complaint is not a libel or a slander. Therefore, to consider whether you want to sue someone for defamation, you must understand whether an action is considered libel or slander.  

With that in mind, this article aims to illustrate the difference between libel and slander. It will first focus on the main difference between libel and slander, then further address what constitutes a libel or slander. It also considers possible defenses should you face (or aim to raise) claim for libel or slander. The later sections focus on potential damages and mitigation for libel or slander.

 

 

 

B. What is Libel?

 

Libel is a written defamatory statement that is found in print. Libel refers to a written or digital defamatory statement or false representation that conveys an unjustly unfavourable impression. Libel only occurs in written statements (including statements in digital media). As such, in certain jurisdictions, spoken statements made on TV, radio or in other digital media which create a permanent record could constitute libel as well as slander.

 

C. What is Slander?

 

Slander is a spoken or oral defamatory statement that is found in speech. Slander refers to a false spoken statement that is made to cause people to have a bad opinion of someone. Slander can be published in any media. It can be a comment on a blog, or in a speech, or a statement on TV.

 

D. What is the difference between Libel and Slander?

 

The main difference between libel and slander is its form. Slander is defamation through a short-lived form of communication, such as speech. Whereas Libel is defamation of a person through a permanent form such as written word.

 

Visual elements such as photographs, paintings, illustrations, status, and bodily gestures can also be regarded as defamatory. The detailed differences between libel and slander are charted below:

 

Libel

Slander

Definition

Defamation in written words or visual form

Defamation in speech

Cause of Action

(1)   There needs to be a defamatory statement or message

(2)   The statement was made to a third party,

(3)   The announcer knew or should have known the statement was false, and

(4)   It causes injury to the subject of the statement.

Who to sue

Any person, company, or organisation involved in publishing the defamatory statement including:

·      Author, editor or publishing company

·       Distributors e.g. website owners and internet service provider

Remedies

Monetary reward

Monetary reward

Statutory limitation

Varies depending on the jurisdiction but mostly 6 years. Time runs from the defamatory statement publishing date.

Varies depending on the jurisdiction but mostly 2 years. Time runs from the defamatory statement publishing date.

 

Another important difference between libel and slander is that libel is actionable per se (that is, it is presumed to have damages on the plaintiff), whereas, in the case of slander, the plaintiff must prove the damages unless the slander relates to the following matters:

  • has committed a criminal offence punishable by imprisonment;
  • has an existing contagious / infectious disease;
  • is unchaste or has committed adultery; or
  • is incompetent or unfit in any office, profession, trade or business.

In other words, the standard for a plaintiff to prove slander is higher since the plaintiff has to demonstrate to the court that he / she suffered some loss or damages (except under the four items above).

 

 

E. Examples of Libel

 

Libel refers to a defamatory statement made in a permanent form, such as written or in an art form. This also expands to statement in the printed medium or on the internet. For instance, if Bob were to tweet the statement online, then the statement can be libellous.  A well-known example of libel would be Lese majeste law in Thailand, where according to the s112 of the Thai Criminal Code it is illegal to defame the king or the queen. Under this law, a Thai man was jailed for 35 years for insulting the King on Facebook.

F. Examples of Slander

 

Slander is a spoken defamatory statement and the third party must have heard the statement. For instance, if Bob exclaimed “Hugo Hot Dogs are made from real dogs!” to passer-by the shop, then the statement is likely to be slander rather than libel.

Given that slander is a spoken statement, slander is, therefore, harder to prove and it is a less harmful form of defamation given it does not necessarily last permanently.

G. How do I determine if a statement is Slander or Libel? What about a statement made online?

 

One of the most important elements in defamation is that the statement made by the alleged defamer must be a matter of fact rather than an opinion.  For instance, if Bob said Hugo hotdogs ‘tastes like dog meat’ instead of ‘are made of real dogs’, then it is likely to be a matter of opinion rather than a statement of fact.

 

Therefore, in that case, the statement cannot be slander. Stating that hotdogs are made of real dogs, however, is a statement of fact and therefore is implying a violation of the health & safety law and could be a slander.

 

Statements made online are generally in writing and permanent in nature, thus a defamation statement made online are generally regarded as libel. 

 

H. How do I identify the person who made the Defamatory statement online?

 

This is probably the most challenging part if the defamatory statement was not made under a real social media account but posted anonymously or under a fake identity. There are two main ways to identify an anonymous online defamer:

 

  1. Request or Compel the Website to Identify the Defamer (Most Common Law Jurisdictions)


    You can request the website where the defamatory comment is hosted to take down the comment and disclose the identity of the anonymous defamer. However, most websites rarely take actions unless being ordered to do so by a court. There are increasing case laws in many common law jurisdictions where the website is compelled to provide all documents in its possession which might help identify an anonymous user. In general, the website will be compelled to disclose the identity to the plaintiff if: (i) there is a "prima facie" case by the plaintiff against the defamer; (ii) the plaintiff has made reasonable enquiries but is unable to identify the defamer; and (iii) the website has or is likely to have the information to help identify the defamer. 

  2. Filing a Defamation Lawsuit against the Anonymous Defamer (U.S.)


    If the defamatory content is posted on a website based in the U.S., you can bring a defamation lawsuit against an "anonymous" or an "unknown defendant". You must first need to make a reasonable effort to identify the defamer, and then during the discovery process, you can ask the court to issue a subpoena. You can first ask the website where the defamatory statement is posted is subpoenaed to provide the details of the defamer. If it returns a name, you can proceed to sue the defamer.

    More often than not, it will return an IP address as a result of privacy law issues in disclosing personally identifiable information. You will need to take the next step of subpoenaing the ISP to disclose the identity of the person who made the defamatory statement. If the ISP fails to comply, you can take legal action against the ISP. You must prove to the court that you took all reasonable steps but are still unable to identify the defamer. This can be shown through emails, WHOIS search results, other online records, and copies of subpoenas and responses to them.

I. How to write a Cease and Desist letter for Defamation?

 

It is important for the defamation cease and desist letter to be well and correctly drafted that list out accurate facts to support a case of defamation. An inconsistent or factually inaccurate letter may greatly damage your credibility and the ultimate prospect of success, whether in court or in the settlement process. You may seek to use a law firm to prepare the letter who can also provide advice on the prospect of the case, as the defamer is likely to take a letter from a law firm more seriously.

 

You may also choose to draft the cease and desist letter yourself if you do not want to spend money to hire a lawyer. The following are some Cease and Desist Defamation letters sample templates you can use:

 

For a Request / Demand for Apology Defamatory Comment, please refer to https://docpro.com/doc847/request-demand-for-apology-defamatory-comment

 

For a Cease and Desist Letter Defamation of Character / Slander / Libel, please refer to https://docpro.com/doc1547/cease-and-desist-letter-defamation-of-character-slander-libel

 

For a Request / Demand for Removal Defamatory Comment, please refer to https://docpro.com/doc848/request-demand-for-removal-defamatory-comment

 


J. How do I know if it is a statement of fact or opinion?

 

Whether a statement is a defamation is based on whether the statement is a fact or opinion. Normally a fact is a statement that can be proven true or false, whilst opinion is an expression that cannot be proven.

 

However, it is difficult to distinguish between a statement of fact or statement of opinion, because an opinion can be represented as a factor is based on a fact.

 

K. What are the possible defences if I got sued for libel or slander?

 

The first possible defence is that the allegedly defamatory statement is not towards the claimant (i.e. the one suing for libel or slander).

 

Should this defence does not work, there are four main defences available to a defendant in a libel or slander action: Truth, Honest Opinion, Publication on a matter of Public Interest and Privilege (Qualified or Absolute).

  1. Truth


    This is a complete defence if the accused can show that the statement they have published or spoken is substantially true. If what was said is true, then there is no case for defamation. It is for the accused to show that the statement is true.

    Nonetheless, this defence could be complicated by the fact that the court needs to evaluate the intent of the people making the defamatory statement. A public figure claiming on TV would be different than a private citizen tweeting its words in the textbox.

    If the person making such a defamatory statement is a public figure, such as it is now Donald Trump rather than Bob who claims that  Hugo Hotdogs are made of actual dogs, Trump must have known the statement was untrue or must have disregarded the statement recklessly for the statement to be libellous.

    For private citizens, however, it would be a libel if the statement has been made with negligence as to its truthfulness. The differing standards with regard to intent make it easier to prove libel or slander if the victim is a private citizen.

  2. Honest Opinion


    As previously stated, if the statement is, in fact, an opinion then the accused will not be liable for slander or libel. As long as an honest person with similar available facts could also have held the same opinion, then the accused will not be liable for slander or libel.

    However, if one can show that accused did not hold the opinion, for instance, there are previously contradictory statement which shows the accused intended to do this to attack a company’s reputation, then this defence will not hold.

  3. Publication on a matter of public interest


    Accused must show the allegedly defamatory statement is a matter of public interest and, having regard to the circumstances surrounding the case, the accused reasonably believed that publishing the statement was in the public interest.

  4. Privilege


    There are two types of privilege: absolute and qualified privilege.
    • Absolute privilege: covers limited circumstances, such as parliamentary and judicial proceedings,  made by officers of the government in the course of duty, and communication between lawyers and their clients.

    • Qualified privilege: permits a person acting under legal, social or moral duty to make, relay, or report allegedly defamatory statements. The general public can also claim for this privilege if he or she made the statement in the course of an employer’s duty. For instance, a news reporter might be able to rely on this privilege subject to local laws.

      However, if there is malice (e.g. an intention to do wrong to others) in the making of the statement, then qualified privilege is not a possible defence. At common law, even though a member may be able to rely on a defence of qualified privilege in respect of a defamatory statement made in the course of a meeting, a representative of the press would not be able to do so.

For a Reply to Complaint on Defamatory Comments Defence, please refer to https://docpro.com/doc1002/reply-to-complaint-on-defamatory-comments-defence

 

For an Acknowledgement and Assurance to Cease and Desist Letter Defamation of Character, please refer to:
https://docpro.com/doc1551/acknowledgement-and-assurance-to-cease-and-desist-letter-defamation-of-character-slander-libel

 

L. Is Defamation / Slander / Libel covered by Insurance?


One should note that a libel/slander claim might be covered by your insurance for your company. This is normally covered by the general liability policy under Personal and Advertising Injury Coverage.

 

In generally four conditions need to be satisfied before you can claim for insurance:

  • The act (libel/slander) must have been committed in the jurisdiction covered by your policy and during your policy period;

  • The offence must have arisen out of your business operations;

  • The offence must have been committed people/firm that is insured; and

  • The statement must be in published orally or in written form. The statement must also slander or libel a third party.

M. Damages and Mitigation

A successful libel or slander claim will normally be rewarded with compensation along with legal costs covered by the opponent. The precise amount of monetary reward depends on the seriousness of the allegation and the type of harm caused.

Should the case is in favour of the claimant (i.e. the one who brought the slander or libel claim), it is also possible to obtain a court order to prevent further publication of the statement  (this is known as an injunction). If the case is resolved by settlement outside court, it is also possible to seek undertakings from the accused to not repeat the allegations.  

 


N. Do I have to go to court for slander/libel claim?

 

Going to court is often costly and it is not necessary to go to court to deal with slander/libel. Generally one should first write a letter of complaint (e.g. cease and desist letter) to the offender because most of the courts encourage parties to resolve matters without going to court for the sake of time costs.  

For more knowledge of alternative dispute resolution, please see our other entry on ADR.

DocPro provides examples of strongly-worded cease and desist letter for different circumstances:

Cease and Desist Letter
(Defamation of Character/ Slander/ Libel)

https://docpro.com/doc1547/cease-and-desist-letter-defamation-of-character-slander-libel

Cease and Desist Letter
(Defamation of Company)

https://docpro.com/doc1551/acknowledgement-and-assurance-to-cease-and-desist-letter-defamation-of-character-slander-libel

 

Acknowledgement and Assurance to Cease and Desist Letter

https://docpro.com/doc1548/cease-and-desist-letter-defamation-of-company

 


O. Can I get an apology for a libel or slander?

 

It is common to seek an apology in your cease and desist letter, and it is also common for the defendant to publish an apology as part of the settlement deal.

However, a court cannot force the accused to apologise. Therefore if the slander/libel claim went into a trial, one normally obtains a judgment in one’s favour with a monetary award of damages (without apologies).

 

P. Can I stop a defamatory statement that is about the be published?

 

Generally, it is rare to obtain an injunction against potential libellous publication because it might interfere with freedom of speech.

However, you can dissuade the publisher from publishing by demonstrating that the allegations are false and the publisher is taking a high legal and financial risk by publishing such a statement.

 

Alternatively, you can also change the narrative by getting in touch with the publisher and tell them the facts from your point of view.  


Q. Conclusion


This article is intended to facilitate the understanding of the difference between libel and slander. It first examines the main difference between the two concepts and addresses issues that might arise for a start-up/SME that is facing defamation claims.

 

It also focuses on the potential damages one could seek and has provided an example of how to settle a slander/libel claim. One should note that this entry is not intended to provide a detailed legal analysis. Rather, this entry serves as general guidance on the differences between libel and slander, and also address on crucial matters that one should take into account when facing defamatory statement. 

Please note that this is just a general summary of the position under common law and does not constitute legal advice. As the laws of each jurisdiction may be different, you may want to speak to your lawyer



 

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