"Slander and Libel are different types of Defamation" - discuss

Slander and libel are not properly to be regarded as different torts but rather as different species of the same tort, namely that of defamation. Defamation has been defined in Winfield and Jolowicz as:

"…the publication of a statement which reflects upon a person's reputation and tends to lower him in the estimation of right-thinking members of society generally or tends to make them shun or avoid him."

Libel is considered to be more favourable to the claimant because it is actionable per se and the requisite injury to his reputation will be presumed. There are, however, certain common elements to both torts:

  • The statement must be defamatory in the terms of the above definition;
  • It must demonstrably refer to the claimant as an identifiable individual;
  • It must be "published", that is, communicated to at least one other person than the claimant.

The statement of Parke B in Parmiter v Coupland is regarded as a classic definition of "defamatory":

"A publication, without justification or lawful excuse, which is calculated to injure the reputation of another, by exposing him to hatred, contempt or ridicule…"

However, doubt has been cast upon the sufficiency of this approach. In Tournier v National Provincial Union Bank of England , Scrutton LJ suggested that this definition would not apply in a business context since damage might be caused to a commercial reputation and properly actionable even though the words "hatred", "contempt" or "ridicule" might not be appropriately applied. In the same case, Atkin LJ supplied an apt example (@487):

"…the imputation of a clever fraud which, however much to be condemned morally and legally, might yet not excite what a member of a jury might understand as hatred or contempt."

In Scott v Samson , use was made of the phrase "false statements to [the plaintiff's] discredit". However, this was criticised by the Faulks Committee on the basis that the word "discredit" is itself not susceptible to precise definition. Rahter the Committee preferred the following approach (@ para 65):

"Defamation shall consist of the publication to a third party of matter which in all the circumstances would be likely to affect a person adversely in the estimation of reasonable people generally."

Brief consideration of the approach of other jurisdictions is instructive. The American Law Institute's Restatement of the Law of Torts provides: in his profession or trade, or by which other persons are likely to be induced to shun or avoid or ridicule or despise him…".

"A communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him."

In Australia, the Queensland Code (@ 366) states:

"Any imputation concerning any person, or any member of his family, whether living or dead, by which the reputation of that person is likely to be injured.

The inadequacy of a concentration upon "reputation" was illustrated in Berk off v Burchill : the defendant, a journalist, wrote of the claimant, a film director, "film directors, from Hitchcock to Berkoff, are notoriously hideous-looking people." In her defence, she claimed that the statement was not capable of being defamatory as it could not affect the reputation of the claimant. Neill LJ reminded the court that it was not the intention of the publisher which determined whether or not a statement was defamatory but rather "the reaction of the ordinary reader". In that case, it was concluded that a statement as to the physical characteristics of someone who made his living in the public eye was capable of lowering his public standing and subjecting him to ridicule.

Collins is of the view that the authorities are divided as to whether the distinction is based on the "form of publication" or the "mode of publication". The former test is that which prevails in England where libel is defamation published in some permanent form and slander is oral or published in some transient form. The Australian distinction is easier to apply: slander is defamation communicated by word of mouth and all other modes of publication are libel.

The historic distinction between libel (the written word) and slander (the spoken word) is less certain in the modern era of electronic recording and communication. Further, defamation has now found new applications with the advent of the Internet (see below). In Youssopoff v Metro-Goldwyn- Mayer Pictures Limited , the plaintiff claimed that she had been defamed in a film. At the time, films with a soundtrack were a recent invention and the question therefore arose whether such defamation was a libel or a slander. Slesser LJ was certain that the action was properly framed in libel:

"There can be no doubt that, so far as the photographic part of the exhibition is concerned, that is a permanent matter to be seen by the eye and is the proper subject of an action for libel, if defamatory."

This approach has subsequently received statutory endorsement. Section 16 of the Defamation Act 1952 provides:

"Any reference in this Act to words shall be construed as including a reference to pictures, visual images, gestures and other methods of signifying meaning."

Section 166 of the Broadcasting Act 1990 states:

"Defamatory material…For the purposes of the law of libel and slander (including the law of criminal libel so far as it relates to the publication of defamatory matter) the publication of words in the course of any programme in a programme service shall be treated as publication in a permanent form."

Perhaps the most significant factor in distinguishing between libel and slander is therefore "permanence". In Monson v Tussauds Ltd , the plaintiff complained that a waxwork effigy in the famous gallery had the effect of accusing him of murder. Lopes LJ agreed:

"Libels are generally in writing or printing, but this is not necessary; the defamatory matter may be conveyed in some other permanent form. For instance, a statue, a caricature, an effigy, chalk marks on a wall, signs or pictures may constitute a libel."

Interestingly, however, the Theatres Act 1968, section 4 provides that the "publication of words in the course of a performance of a play shall…be treated as publication in a permanent form" and s.4(3) extends the meaning of "words" to include "pictures, visual images, gestures and other methods of signifying meaning." This apparent anomaly - treating the spoken word, if uttered on stage, as a libel - can be rationalised by the fact that plays are intended to be repeated in substantially the same form at each performance and are predominantly based upon a written script. Nonetheless, a curious situation would arise if an actor were to indulge in a malicious and injustified ad lib which although apparently of the same character as any other verbal insult would by virtue of this Act be regarded as libel.

What then are the consequences of the distinction between libel and slander? As has been observed above, libel is "actionable per se" whereas in the case of slander "special damage" must be shown. This is a civil law term of art and has been criticised as "either meaningless or misleading". In Ratcliffe v Evans , Bowen LJ suggested that "actual damage" was a more accurate expression. Thus, some material loss which is capable of reduction to financial terms must be demonstrated. Thus, social ostracism on its own will not give rise to a remedy for slander although, curiously, exclusion from a dinner would be actionable since there is a pecuniary loss over and above the loss of society. By contrast, successful claims based on a libel will attract an award of general damages in addition to any provable special damages on the basis that the damage to reputation is considered a loss in itself. The recovery of special damages is subject to the usual tort rule of foreseeability. Thus, in Vicars v Wilcocks damages for the loss of employment by the plaintiff which arose from a slander by the defendant were held not to be recoverable since the loss of employment was not the "legal and natural" consequence of the slander. However, this does not mean that all consequences flowing from a defamatory statement will be regarded as too remote. In Lynch v Knight , Lord Wensleydale stated the test thus:

"To make the words actionable by reason of special damage, the consequence must be such as, taking human nature as it is, with its infirmities and having regard to the relationship of the parties concerned, might fairly and reasonably been anticipated and feared would follow from the speaking of the words."

However, in that case, a husband had rejected his wife upon hearing of a relationship before their marriage. It was held that this consequence was too remote to constitute special damage.

Paradoxically, there are four special situations in which slander has been held to be actionable per se. These are justified in Markesinis and Deakin's Tort Law as "explained by reference to history" citing the words of Asquith LJ in Kerr v Kennedy because they are:

"…either so obviously damaging to the financial position of the victim that pecuniary loss is almost certain; or so intrinsically outrageous that they ought to be actionable even if no pecuniary loss results."

The first such situation is the imputation of a criminal offence punishable by imprisonment in the first instance. Thus in Gray v Jones , the words used were, "You are a convicted person. I will not have you here. You have a conviction." It was held that the almost inevitable result of an imputation of this type would be that a person would be held in contempt and ostracised from society; the seriousness of this result was such as to render the proof of "actual" or "special" damage unnecessary.

Technical language is not required but the effect of the words as a whole must be to impute a crime punishable by imprisonment. Thus in Jackson v Adams , the use of the words, "Who stole the parish bellropes, you scamping rascal?" to a churchwarden was not regarded as such an imputation on the somewhat artificial basis that since possession of the bellropes was vested in the churchwarden, he was technically incapable of their theft.

The second anomalous situation is the now somewhat quaint and archaic "imputation of unchastely to a female. This is expressly made actionable per se by the Slander of Women Act 1891. This exception is of questionable validity today since it does not square readily with current notions of gender equality and, in any event, the concept of unchastity by the standards of the nineteenth century would be difficult to apply in contemporary society.

The third such category is the imputation of a contagious disease likely to affect the willingness of people to associate with the victim. This is again somewhat archaic with the last reported decision being Bloodworth v Gray in 1844. The categories of disease to which the principle extends have always been somewhat confused and clearly the development of this aspect of the law did not contemplate AIDS. For this reason it is suggested that "either the category should be extended to every serious communicable disease or abandoned altogether."

The final exception is in respect of imputations calculated to disparage the plaintiff in any office, profession, calling, trade or business. Thus in Foulger v Newcomb , a gamekeeper who was responsible for the protection of foxes in a particular area recovered against a defendant who accused him of poisoning foxes. However, the imputation has to be directed against the particular profession, calling etc. Therefore, in Thompson v Bridges an action did not succeed in respect of an accusation that a head teacher had committed adultery with a dinnerlady since even though this was alleged to have taken place on school premises it could not be said to relate to the head teacher's profession. However, an allegation in respect of a pupil might fall into this category.

The Internet poses challenging questions as to the distinction between libel and slander. Whether defamatory Internet publications are libel or slander has yet to be authoritatively determined. However, in the unreported decision of the Supreme Court of Western Australia in Rindos v Hardwick a defamatory posting on a bulletin board appears to have been regarded as libel. However, the classification of material transmitted via the internet is complicated by the variety and flexibility of the medium. A web diary or "blog" would appear to satisfy the necessary requirements of publication and permanence. More difficult, however, would be postings on a bulletin board or exchanges in a "chat room". It has been suggested that a possible means of resolution is the attempted application of the Broadcasting Act 1990 (supra). Section 202 of the Act defines the terms "programme" and "programme services" contained in s.166 above. Section 202(1)(c) includes within "programme services":

"any other service which consists in the sending, by means of a telecommunications system, of sounds or visual images or both either-
(i) for reception at two or more places in the United Kingdom…or
(ii) for reception at a place in the United Kingdom for the purpose of being presented there to members of the public or to any group of persons."

Thus most internet communications will fall into one of the above categories (except, of course, e-mails to one recipient only which would in any event fail to satisfy the requirement of "publication") and may therefore be treated by virtue of the provisions of s.166 of the Act as potentially libellous.

The Act can only apply to Internet services made available by a "telecommunications system" which is defined by s.4(1) of the Telecommunications Act 1984 as "a system for the conveyance [of speech, visual images etc.] through the agency of electric, magnetic, electromagnetic, electro-chemical or electro-mechanical energy…" It is therefore difficult to envisage any form of Internet communication whether via telephone land lines or mobile telephone technology which would not be captured by such a description.

Thus both historically and currently slander and libel are different types of defamation. It is difficult to justify the perpetuation of such a distinction. In each instance, recovery depends upon proof of damage to reputation and in each case the requirements of reduction of a person's standing in the estimation of right-thinking people and publication must be satisfied. Particularly illogical and increasingly indefensible is the discrimination between each type of tort in terms of the ability of the plaintiff to recover general damages. Traditionally, this has been justified on the basis that slander - originally restricted to the spoken word - is transitory and therefore less demonstrably damaging. However, the classification of Internet communication as libellous seems almost absurd when the example of exchanges on a bulletin board is considered. How can a fleeting exchange of this type which directly replaces audible speech and occurs just as instantaneously be regarded as more inherently damaging than a normal verbal exchange? In particular, the continuation in force (at least in theory if not in practice) of the four special categories of slander which are actionable per se is an anachronism which can no longer be justified. Perhaps the time has come to recognise the expanded varieties of communication available in the modern age and to sweep away the unhelpful distinction between libel and slander while providing protection against damage to reputation by a single, unified tort of defamation.

Bibliography

Collins, M., The Law of Defamation and the Internet, (1st Ed., 2001)

Deakin, S., Johnston, A. & Markesinis, B., Markesinis and Deakin's Tort Law, (5th Ed., 2003)

Howarth, D. & O'Sullivan, J., Hepple, Howarth & Matthews' Tort: Cases and Materials, (5th Ed., 2000)

Kidner, R., Casebook on Torts, (8th Ed., 2004)

Rogers, W., Winfield & Jolowicz on Tort, (16th Ed., 2002)