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Roman law, which forms the basis for contemporary civil and mixed law legal systems, aimed to provide society with sufficient scope for the discussion of an individual's character while protecting individuals from unnecessary insult and pain. The primary remedy for verbal defamation was long confined to a civil action for a monetary penalty calculated with regard to the significance of the defamatory statement serving both to vindicate the defamed party's reputation and to provide compensation for any damages incurred as a result of the statement, but a new remedy was introduced with the extension of the criminal law under which many kinds of defamation were punished with great severity. At the same time, increased importance attached to the publication of defamatory books and writings, the libri or libelli famosi, from which is derived the modern use of the word libel, and, under the later emperors the latter term came to be specially applied to anonymous accusations or pasquils, the dissemination of which was regarded as particularly dangerous and visited with very severe punishment whether the matters contained in them were true or false.


Modern defamation in common law jurisdictions are historically derived from English defamation law. English law allows actions for libel to be brought in the High Court for any published statements alleged to defame a named or identifiable individual or individuals (under English law companies are legal persons, and allowed to bring suit for defamation[27][28][29]) in a manner that causes them loss in their trade or profession, or causes a reasonable person to think worse of them.

In contemporary common law jurisdictions, to constitute defamation, a claim must generally be false and must have been made to someone other than the person defamed.[30] Some common law jurisdictions distinguish between spoken defamation, called slander, and defamation in other media such as printed words or images, called libel.[31] The fundamental distinction between libel and slander lies solely in the form in which the defamatory matter is published. If the offending material is published in some fleeting form, such as spoken words or sounds, sign language, gestures or the like, then it is slander. In contrast, libel encompasses defamation by written or printed words, pictures, or in any form other than spoken words or gestures.[32][b] The law of libel originated in the 17th century in England. With the growth of publication came the growth of libel and development of the tort of libel.[33] The highest award in an American defamation case, at US$222.7 million was rendered in 1997 against Dow Jones in favour of MMAR Group Inc;[34] however, the verdict was dismissed in 1999 amid allegations that MMAR failed to disclose audiotapes made by its employees.[35]

Some jurisdictions have a separate tort or delict of injury, intentional infliction of emotional distress, involving the making of a statement, even if truthful, intended to harm the claimant out of malice; some have a separate tort or delict of "invasion of privacy" in which the making of a true statement may give rise to liability: but neither of these comes under the general heading of "defamation". The tort of harassment created by Singapore's Protection from Harassment Act 2014 is an example of a tort of this type being created by statute.[47] There is also, in almost all jurisdictions, a tort or delict of "misrepresentation", involving the making of a statement that is untrue even though not defamatory. Thus a surveyor who states a house is free from risk of flooding has not defamed anyone, but may still be liable to someone who purchases the house relying on this statement. Other increasingly common claims similar to defamation in U.S. law are claims that a famous trademark has been diluted through tarnishment, see generally trademark dilution, "intentional interference with contract", and "negligent misrepresentation". In America, for example, the unique tort of false light protects plaintiffs against statements which are not technically false but are misleading.[58] Libel and slander both require publication.[59]

Similarly, New Zealand received English law with the signing of the Treaty of Waitangi in February 1840. The current Act is the Defamation Act 1992 which came into force on 1 February 1993 and repealed the Defamation Act 1954.[89] New Zealand law allows for the following remedies in an action for defamation: compensatory damages; an injunction to stop further publication; a correction or a retraction; and in certain cases, punitive damages. Section 28 of the Act allows for punitive damages only when a there is a flagrant disregard of the rights of the person defamed. As the law assumes that an individual suffers loss if a statement is defamatory, there is no need to prove that specific damage or loss has occurred. However, Section 6 of the Act allows for a defamation action brought by a corporate body to proceed only when the body corporate alleges and proves that the publication of the defamation has caused or is likely to cause pecuniary loss to that body corporate.

As is the case for most Commonwealth jurisdictions, Canada follows English law on defamation issues (except in Quebec where the private law is derived from French civil law). In common law provinces and territories, defamation covers any communication that tends to lower the esteem of the subject in the minds of ordinary members of the public.[90] Probably true statements are not excluded, nor are political opinions. Intent is always presumed, and it is not necessary to prove that the defendant intended to defame. In Hill v. Church of Scientology of Toronto (1995), the Supreme Court of Canada rejected the actual malice test adopted in the US case New York Times Co. v. Sullivan. Once a claim has been made, the defendant may avail themselves of a defence of justification (the truth), fair comment, responsible communication,[91] or privilege. Publishers of defamatory comments may also use the defence of innocent dissemination where they had no knowledge of the nature of the statement, it was not brought to their attention, and they were not negligent.[92][93]

Questions of group libel have been appearing in common law for hundreds of years. One of the earliest known cases of a defendant being tried for defamation of a group was the case of R v Orme and Nutt (1700). In this case, the jury found that the defendant was guilty of libeling several subjects, though they did not specifically identify who these subjects were. A report of the case told that the jury believed that "where a writing ... inveighs against mankind in general, or against a particular order of men, as for instance, men of the gown, this is no libel, but it must descend to particulars and individuals to make it libel."[118] This jury believed that only individuals who believed they were specifically defamed had a claim to a libel case. Since the jury was unable to identify the exact people who were being defamed, there was no cause to identify the statements were a libel.

Another early English group libel which has been frequently cited is King v. Osborne (1732). In this case, the defendant was on trial "for printing a libel reflecting upon the Portuguese Jews". The printing in question claimed that Jews who had arrived in London from Portugal burned a Jewish woman to death when she had a child with a Christian man, and that this act was common. Following Osborne's anti-Semitic publication, several Jews were attacked. Initially, the judge seemed to believe the court could do nothing since no individual was singled out by Osborne's writings. However, the court concluded that "since the publication implied the act was one Jews frequently did, the whole community of Jews was defamed."[119] Though various reports of this case give differing accounts of the crime, this report clearly shows a ruling based on group libel. Since laws restricting libel were accepted at this time because of its tendency to lead to a breach of peace, group libel laws were justified because they showed potential for an equal or perhaps greater risk of violence.[120] For this reason, group libel cases are criminal even though most libel cases are civil torts.

In Portugal, defamation crimes are: "defamation" (article 180 of the Penal Code; up to six months in prison, or a fine of up to 240 days), "injuries" (art. 181; up to three months in prison, or a fine up to 120 days), and "offence to the memory of a deceased person" (art. 185; up to 6 months in prison or a fine of up 240 days). Penalties are aggravated in cases with publicity (art. 183; up to two years in prison or at least 120 days of fine) and when the victim is an authority (art.184; all other penalties aggravated by an extra half). There is yet the extra penalty of "public knowledge of the court decision" (costs paid by the defamer) (art. 189 of Penal Code) and also the crime of "incitement of a crime" (article 297; up to three years in prison, or fine).[178][179]

In Saudi Arabia, defamation of the state, or a past or present ruler, is punishable under terrorism legislation.[181] In a 2015 case, a Saudi writer was arrested for defaming a former ruler of the country. Reportedly, under a [2014] counterterrorism law, "actions that 'threaten Saudi Arabia's unity, disturb public order, or defame the reputation of the state or the king' are considered acts of terrorism. The law decrees that a suspect can be held incommunicado for 90 days without the presence of their lawyer during the initial questioning."[182]

In South Korea, both true and false statements can be considered defamation.[183] The penalties increase for false statements. It is also possible for a person to be criminally defamed when they are no longer alive.[184]

In Spain, the crime of calumny (Article 205 of the Penal Code) consists of accusing someone of a crime knowing the falsity of the accusation, or with a reckless contempt for truth. Penalties for cases with publicity are imprisonment from six months to two years or a fine of 12 to 24 months-fine, and for other cases only a fine of six to twelve months-fine (Article 206). Additionally, the crime of injury (Article 208 of the Penal Code) consists of hurting someone's dignity, depreciating his reputation or injuring his self-esteem, and is only applicable if the offence, by its nature, effects and circumstances, is considered by the general public as strong. Injury has a penalty of fine from three to seven months-fine, or from six to fourteen months-fine when it is strong and with publicity. According to Article 216, an additional penalty to calumny or injury may be imposed by the judge, determining the publication of the judicial decision (in a newspaper) at the expenses of the defamer.[186][187] 041b061a72


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