TAKING SLANDER SERIOUSLY
‘Tis slander,
Whose edge is sharper than the sword, whose tongue
Outvenoms all the worms of the Nile.1
The law of defamation, famously described by A P Herbert as “exceedingly
complicated and wholly unintelligible”2 has long been an easy target for those seeking
to ridicule English law. Judges describe it as “beyond redemption”,3 newspapers
complain of ‘libel tourism’ and the scientific community criticises its chilling effect
on legitimate research.4
Recent years have seen reductions in the scope of defamation liability, mainly on
human rights grounds. Reynolds privilege5 now ensures compatibility with Article 10
of the European Convention (freedom of speech).6 O’Shea v MGN Ltd saw an
otherwise good claim struck out for Art 10 violation.7 And at this very moment, Lord
Lester’s Defamation Bill trundles its way through Parliament, with, among other
provisions, its new defences and hurdles for claimants.
This paper, however, argues that the very same human rights concerns require English
law to extend the scope of defamation liability, in particular, to make slander
actionable without proof of special damage.
1
Shakespeare, Cymbeline, Act III scene iv.
Uncommon Law (1936) p.21.
3
Slim v Daily Telegraph [1968] 2 QB 157, 179 per Diplock LJ.
4
Singh v British Chiropractic Association [2010] EWCA Civ 350.
5
Reynolds v Times Newspapers Ltd [2001] 2 AC 127.
6
Times Newspapers v United Kingdom App. Nos. 23676/03 and 3002/03, October 11, 2005.
7
[2001] EMLR 40.
2
1
This is by no means the first paper to argue in favour of abolishing the special damage
requirement for slander, indeed, several Commonwealth jurisdictions have already
passed legislation to that effect. But this essay differs in two crucial respects. First, it
argues that recent jurisprudence of the Strasbourg Court now makes this reform
essential, and furthermore, that the solutions adopted in other jurisdictions simply
gloss over the problem. A new approach is needed: the complete removal of the
damage element from defamation.
The present law, and the problems it causes.
The action in defamation consists of (1) the negligent or intentional publication to a
third party of a statement referring to the claimant by the defendant (2) that tends to
lower the claimant in the estimation of right-thinking members of society generally
and (3) causes damage to the claimant.8
Defamation is subdivided into two separate torts, libel and slander. As a guide, the
more permanent the publication, the more likely it is to be a libel rather than a slander.
It is here that our problems begin, because while element three of our definition above
(damage) is required for both slander and libel, in the case of libel, it is an irrebuttable
presumption that damage has been caused.9 In the case of slander (except in the
limited situations outlined below) the claimant must show special damage: a loss of
money or a loss which can be estimated in money. And special damage is hard to
8
Gatley on Libel and Slander (11th ed. Para 1.6) would add a requirement that the statement be untrue,
although this essay prefers the view of Winfield & Jolowicz (18th ed.) that rather than lack of truth
being an element, truth (justification) is a defence.
9
See Jameel v Dow Jones & Co Inc [2005] QB 946, where the defendant could prove that the claimant
had not suffered any damage, but was not permitted to rely on that fact to escape liability. The action
was, however, struck out as an abuse of process.
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show. In Allsop v Allsop, the claimant was ostracised by her friends and became
mentally ill when the defendant alleged he had committed adultery with her – this was
not special damage.10 The obvious result is a series of cases where claimants are keen
to frame their claim in libel, and defendants eager to classify an act as slander.
Libel or slander?
The courts have spent much time determining the status of insults temporarily chalked
onto a pavement (libel),11 sign language (slander),12 and the reading out of a letter
(libel – even where the audience are unaware that it is being read)13 to name just three.
Parliamentary time too has been spent deciding that broadcasts14 and words or
gestures during the course of a theatrical performance (but not a rehearsal)15 are libel.
Special damage?
If the publication is undeniably a slander, there is a further plethora of cases
determining whether the slander is one of those that is actionable without evidence of
special damage.
A statement that the claimant is guilty of a criminal offence
punishable by imprisonment is one, so naturally there are hard fought cases
determining intricate questions such as whether an offence punishable by a fine will
qualify if non-payment of the fine will ultimately result in imprisonment (it will
not).16 Similarly, since the Slander of Women Act 1891 drops the requirement of
special damage where a statement imputes “unchastity or adultery to any woman or
girl”, cases such as Kerr v Kennedy tell us whether lesbianism counts as “unchastity
10
5 H&N 534. After 1891 the Slander of Women Act would have aided the plaintiff.
Haylock v Sparke (1853) 1 E&B 471.
12
Gutsole v Mathers (1836) 1 M&W 501.
13
Forrester v Tyrrell (1893) 9 TLR 257.
14
Broadcasting Act 1996, s.168.
15
Theatres Act 1968, s.4.
16
Ormiston v Great Western Railway [1917] KB 598.
11
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or adultery” (it does).17 An imputation that the claimant suffers from a ‘loathsome’
disease is another such situation, meaning we now have an entertaining array of cases
(Gatley lists twenty-three)18 telling us for example that leprosy19 and the plague20 are
loathsome, but smallpox21 and insanity22 are not. There are yet more cases, as well as
s2 of the Defamation Act 1952, detailing when an imputation ridiculing the claimant
in any office, profession, calling, trade or business will be actionable without special
damage. Another abundance of cases tell us, for example, that a claim will fail if the
claimant does not hold the office at the time of the impugned utterance,23 but if an
army officer takes indefinite parliamentary leave to become an MP, he can still claim
as if he were an actively serving soldier.24
Absurd results
The staggering result of this huge body of law is that far from leading to a more
sensitive result in individual cases, it leads to completely nonsensical results. The
examples above give a brief illustration of the fine and often inexplicable distinctions
that the courts have spent so much time drawing. As Prosser notes, the result of the
libel/slander distinction is an “almost perverse refusal to compensate the plaintiff for
real and very serious harm”.25
The distinction itself leads to the following bizarre consequence. If a person in a pub
writes a defamatory statement on a beer mat and passes it to a friend, he commits a
17
[1942] 1 KB 409, 413 per Asquith J.
8th ed., para 166.
19
Taylor v Perkins (1607) CroJac 144.
20
Villers v Monsley (1769) 2 Wils 403.
21
Grimes v Lovel (1698) 12 Mod 242.
22
Countess of Shrewsbury’s Case (1625) Bendloe 155.
23
Cleghorn v Sadler [1945] KB 364.
24
Bull v Vasquez [1947] 1 All ER 334.
25
Prosser and Keeton on Torts (5th ed., 1984) p.772.
18
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libel, actionable even if there is no evidence of any damage to the claimant. However,
if he stands on his bar stool and shouts his statement to the entire pub, he commits a
slander. Even if the slander causes the claimant to lose all his friends and suffer
clinical depression as a result, it seems that he has no recourse to the law.
Human Rights
The most concerning aspect of the present law, and now the most compelling
argument for reform, is that the law does not comply with the European Convention
on Human Rights. The Slander of Women Act 1891 reflects Victorian society’s
views about appropriate behaviour for young ladies. As early as 1902, Carr noted that
this “grudging concession to the female sex is still restricted to them… though a
man’s reputation or decency and courage is not less dear to him than her fair fame is
to a woman.”26
Carr’s sentiment is as correct today as it was then. Why should a defamed man, who
might suffer alienation from his wife and children after a false verbal allegation of
infidelity, be left entirely without redress, while a defamed woman receives the full
protection of the law? Nor is this statute defunct: as recently as 1990, an Asian bride
was awarded £20 000 for a false statement by her husband that she was not a virgin
when she married.27
While before, reform was merely highly desirable, it is now essential if the UK is to
comply with its obligations under the European Convention. Recent jurisprudence of
the Strasbourg Court has declared conclusively that the right of the claimants to
26
27
‘The English Law of Defamation’ 18 LQR 255.
The Independent, May 3, 1990.
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protect their reputation is “a right which is protected by Article 8 of the Convention as
part of the right to respect for private life”.28 As a Convention right, it must be
protected regardless of the claimant’s sex under Article 14. In the light of this, the
special protection accorded to women but not men in the 1891 Act cannot be
sustained.
Possible justifications
It would be unfair to list the most extreme examples of the law’s irrationality without
searching for some explanation of the law’s present state. Before we recommend
reform, we must examine the strongest possible arguments for the status quo.
Bayley J opines in Clement v Chivis that written defamation “is premeditated and
shows design”, there is more deliberate malignity than a slander.29
Bowen LJ
suggests in Ratcliffe v Evans that “a person who publishes defamatory matter on paper
or in print puts into circulation that which is more permanent and more easily
transmissible than oral slander”.30
These reasons are, however, unconvincing.
There is good reason to take the
defendant’s state of mind and the degree of damage done into account at the
assessment of damages stage, but not at the initial stage of deciding whether a tort has
been committed. As the pub example above shows, it is not even clear that writing is
more permanent and transmissible than oral slander, a point noted by Sir James
28
Chauvy v France (2005) 41 EHRR 29.
(1829) 9 B&C 174.
30
[1892] 2 QB 530.
29
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Mansfield CJ as early as 1812 in Thorley v Kerry: “an assertion made in a public
place… may be much more extensively diffused than… a private letter”.31
The libel/slander distinction is the result of a hotchpotch of different rules once
administered by the Star Chamber, ecclesiastical and common law courts.32 It has no
sensible justification.
A simple solution
We have seen how an arbitrary distinction between libel and slander (and between
those types of slander actionable per se and those actionable only on proof of special
damage) has led to the wasting of much court and parliamentary time with absurd
outcomes in individual cases and now, potential human rights breaches. The solution
is obvious: the distinction must simply be abolished.
Other jurisdictions
In civil law jurisdictions the distinction never existed at all.
Justinian defined
defamation as simply a type of injuria which might be re, litteris, verbis.33 The
civilian systems which he inspired in France34 and Scotland35 similarly do not
recognise it today. In some common law jurisdictions, the distinction once did exist
but has now been abolished. New Zealand did it as early as 1954,36 and was later
followed by legislation in Canada37 and Australia.38
31
4 Taunt 364.
See Holdsworth, History of English Law; and the subsequent analyses of Fisher, 10 LQR 158; Carr,
18 LQR 255 & 358; Kaye, 91 LQR 524.
33
Digest xivii 10, De Injuriis et Famosis Libellis, s.5.
34
Art 1382, Code civil; Blin et al, Traité du Droit de la Presse (1969), paras 324 et seq.
35
Mackay v M’Cankie (1883) 10 R 537.
36
Defamation Act 1954, s.4(1).
37
Canadian Uniform Defamation Act ss.1-2, adopted everywhere except British Columbia, Ontario and
Nova Scotia.
32
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Clearly, well developed legal systems, both civilian and common law, do well without
the libel/slander distinction. The reform this paper suggests would be along similar
lines to that advanced in New Zealand, Canada and Australia, but with a crucial
difference.
Recall the three elements of defamation that we encountered earlier: (1) the
publication of a statement (2) that tends to lower the claimant’s reputation and (3)
causes damage. Element three is always required, but need not be proved in libel and
certain types of slander.
The New Zealand solution is to make it unnecessary to allege or prove special damage
in any action for defamation. The Australian approach is similarly to declare that “the
distinction at general law between slander and libel is abolished” and that
“accordingly, the publication of defamatory matter of any kind is actionable without
proof of special damage”. The Canadian solution is perhaps the least elegant of them
all, stating that where any type of defamation is proved “damage shall be presumed”.
Leaving aside the obvious errors in the Canadian drafting,39 all three solutions share
an element of clumsiness. They all retain the irrebuttable presumption of damage for
libel, merely extending it to all forms of defamation.
This is certainly an
improvement, but also a missed opportunity.
38
Defamation Act 2005 s.7 (NSW), now enacted as uniform legislation.
There are two problems with this text. First, damage is an element of defamation, so defamation
cannot be proved without proving damage in the first place (the draftsman must have meant that
damage is presumed when any type of defamation is alleged). Secondly, the presumption is not made
irrebuttable, so on a strict interpretation a defendant could simply adduce evidence that there was no
special damage and we would be back where we started. A purposive interpretation would be
necessary to avoid this provision becoming completely ineffective.
39
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Legal fictions
Medieval lawyers were familiar with the concept of the non-traversable legal fiction.
Due to primitive common law’s slow recognition of new heads of action, claimants
were historically forced to frame their claim under one of the recognised writs. So an
unwitting purchaser of stale wine was comically forced to allege that the vendor had
contaminated the wine “with force and arms, namely with swords and bows and
arrows”.40 The Court, obviously aware that the allegation was false but realising the
compelling social need for a legal remedy, would not allow the defendant to ‘traverse
the fiction’. Much derided by Dickens, legal fictions were supposedly abolished in
1852.41
But the legal fiction lives on in libel’s irrebuttable presumption of damage.
A
presumption proper is a rule allowing a court to infer a fact from another fact. For
example, a court can infer from the fact that a child was born to a husband and wife
living together that the husband is the natural father, unless and until evidence to the
contrary is adduced. But the irrebuttable presumption of damage in a libel action is
not truly a presumption at all. As we saw in Jameel42 above, it cannot be traversed,
even when the evidence is clear that there was no damage.
The law’s development so far has been a ‘quick fix’. Troubled by the injustice done
to by allegations of unchastity, unprofessionalism, disease and criminality, English
law has slowly enlarged the class of cases covered by the presumption of damage.
40
Rattlesdene v Grunestone (1317) YB 10 Edw II.
Common Law Procedure Act 1852. See Baker, ‘Introduction to English Legal History’ (4th ed.),
ch.5.
42
n.9 supra.
41
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Other common law jurisdictions have gone the full distance and enlarged the class to
cover all cases. They still require damage, but presume that it exists even when it
clearly does not. A far more logical and coherent solution is simply to remove the
damage requirement from defamation altogether.
Possible objections
Given the current trend towards reducing the scope of defamation liability to protect
freedom of speech, it makes sense to address some key concerns here.
Won’t the courts be deluged with claims for minor slanders which don’t cause any
damage?
The real waste of court time comes from the pointless enquiry into whether an alleged
defamation is a slander or a libel.
The added certainty should result in more
retractions of untrue statements and offers to make amends out of court.43
Shouldn’t we be trying to reduce the scope of defamation liability?
This is a somewhat political question, but regardless of one’s views on the matter, it
does not change the fact that the libel/slander distinction cannot be supported.
Whether one prefers to reduce the scope of defamation liability generally or not, the
same rules should apply to slander and libel alike.
43
Defamation Act 1996, s.2.
10
Doesn’t the Slander of Women Act protect women from the double standards that a
sexist society still imposes?
It may well be the fact that sexual activity by women is still met with more moral
disapproval than the same activity by men. Nonetheless, human rights rules exist to
remove the differences between society’s treatment of the sexes, the fact that society
is in many respects still sexist is an argument in favour of those rules, not an
objection.
Why should claimants be allowed to sue when they haven’t suffered any damage?
Claimants can still suffer serious damage to their reputation that is not quantifiable in
financial terms. Often, claimants are happy to win nominal damages of £1 simply as a
vindication of their rights.
Conclusion
The libel/slander distinction has already wasted a huge amount of court time,
generating a confusing and often inexplicable body of case law.
The result of
historical accident, the distinction is now bringing English law into conflict with
human rights norms. While other Commonwealth jurisdictions have removed the
distinction, they have left in place the non-traversable legal fiction of damage. An
embarrassment in the 19th century, it is completely unacceptable in the 21st century.
While there are legitimate concerns about freedom of speech, these arguments provide
no objection to the reform proposed. It should no longer be an element of libel or
slander that the defendant has caused damage to the claimant.
Robert Amey - 2999 words
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