Episode 134: November 23, 2012
by Adam Freedman
Today’s topic: Libel versus slander
And now, your daily dose of legalese: This article does not create an attorney-client relationship with any reader. In other words, although I am a lawyer, I’m not your lawyer. In fact, we barely know each other. If you need personalized legal advice, contact an attorney in your community.
What’s the Difference Between Libel and Slander?
Libel and slander are both legal terms that refer to communications that can hurt a person’s reputation--and they can both lead to lawsuits--but the terms are not identical. When it comes to defending your reputation, it’s worth knowing the difference between these important legal concepts.
Origins of Slander and Libel
Slander derives from the Latin scandalum--that’s right, “scandal.” The connection is no coincidence. Historically, English and American judges subscribed to the theory that sticks and stones are more dangerous than words. In order to persuade a court to award compensation for a mere insult, it had to be something scandalous indeed.
On the Internet, messages posted to a bulletin board may constitute libel, at least according to a 2003 California Appellate Court decision.
Early slander cases were based on scurrilous accusations--like saying that a man had committed a felony, or that a woman was “unchaste.” Disease was also a popular put-down in the old days. The 17th century fashion of accusing one’s rivals of “the pox” gave rise to lots of slander cases. Pox, you see, was a code word for syphilis.
Libel, which comes from the Latin libellus, or “little book,” came into fashion with the advent of the printing press. In the 16th century, defamatory pamphlets were known as libelli famosi, and by the 17th century, “libel” became a legal term for a written insult.
Slander is Spoken, Libel is Written
At first, a “libel” was just one example of slander. But over time, courts began to accept the idea that putting nasty words on paper is inherently more harmful than merely speaking them. After all, documents create a permanent record that can be circulated to one’s boss or one’s in-laws. In 1812, a British court definitively established that a claim for libel (a written insult) is legally distinct from a claim for slander (a spoken insult).
For Slander, You Have to Prove “Special Damages”
Here’s why it matters. The victim of a mere slander has to prove that he lost money as a direct result of the slander--otherwise, he’ll lose the lawsuit. This is known as the requirement of pleading special damages.
But with libel there is no requirement to plead special damages. You can sue somebody for a written insult whether or not that insult actually cost you any money. The upshot is that you’ll be considerably better off in court if your enemies take the time to insult you in writing. To this day, the US and other English-speaking countries maintain the distinction between libel and slander. But two things complicate this distinction.
Some Types of Slander Don’t Require “Special Damages”
First, there are certain types of slander that are treated as though they were libel, that is, the plaintiff does not have to plead special damages. These are known as slander per se. Most categories of slander per se have archaic names, such as the accusation of a loathsome disease or the imputation of “unchastity” to a woman.
Archaic or not, slander per se remains an important legal doctrine. Recent cases have established that the term “loathsome disease” (although it originally referred to our friend “the pox”) now includes the accusation that a person has AIDS. And as recently as 1996, there was a slander lawsuit in New York based on the imputation of unchastity to a woman.
On the Internet, Is It Slander or Libel?
The other thing complicating the slander vs. libel dichotomy is modern technology. It was easy enough to distinguish between written and spoken words in the 18th century, but what to do in the age of radio, television, and Internet? Generally, defamatory words on radio or television are classified as slander. On the Internet, however, messages posted to a bulletin board may constitute libel, at least according to a 2003 California Appellate Court decision.
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