Monday, 20 October 2008

Defamation: Libel And Slander

Defamation can take the form of libel or slander, and there are clear differences between the two. Libel is written, while slander is spoken. So, if you object to something that someone writes about you on the internet, or in a newspaper, that’s potentially libel; whereas if you object to something that is said about you, that’s potentially slander.

People can say or write negative things about each other with impunity if what they say or write is true, and causes no damage to anyone’s reputation. If it’s true, and no reputation is hurt by it, then it doesn’t matter how much anyone objects to what has been written or said, because they’d have no basis for a legal case.

For example, if you were to write “Jane Smith is a big fat lump” I couldn’t do anything legally without making myself look both fat and foolish because it’s true: I am a big fat lump, no matter how much I object to anyone pointing that out. However, if you were to write “Jane Smith is a criminal” then you might be in trouble: I’ve never been convicted of any offence, and would therefore have grounds to sue you—but only if I were to experience a loss as a result of your comments.

It’s not just people who can sue on grounds of libel or slander: any entity or organisation with a reputation to protect can be defamed. So corporations can sue people who say nasty things about their businesses, for example, if those nasty things are untrue and cause the corporation a legitimate loss.

And remember, I’m not a lawyer, just a writer who has made it a priority to find out about these things. If you’re considering your own defamation case then get yourself proper legal advice, and don’t rely on anything you hear from a big fat lump like me.


DOT said...

I think you have just libeled yourself. You are not a big fat lump.
Healthily proportioned maybe, but not a big fat lump.

Sue yourself.

Jane Smith said...

Damn. I'll have to now, won't I?

Marian said...

Jane, please. No one is fat. People are "big-boned" or "plus-sized" or "pleasingly padded".

I'm safe saying that because I'm really skinny. :)

Kate said...

No, you shouldn't put yourself down like that. I'm telling you this as one big, fat lump to another!;)

Luc2 said...

but only if I were to experience a loss as a result of your comments. I'm not sure that is correct. My legal background is Dutch, and not English, so I could be wrong. If you can't prove a loss you may not sue for damages, but I think you could sue and demand rectification.
In the Netherlands, the courts may award monetary compensation for damage to reputation or immaterial damage (grief), but the courts are wary of awarding substantial amounts.

Jane Smith said...

First, I think I should ban Marian from my blog because she's far too thin for me to like.

Second, I prefer to think of myself as a Real Woman rather than a Twiglet.

Third, I need a biscuit.

Jane Smith said...

...and I wasn't ignoring Luc there, I just forgot to approve his comment. Sorry, Luc. I really did NEED that biscuit.

As I understand it, in the UK you do need to show that some damage has been done before you can proceed with any legal claim. But, as I said in my original piece, I'm not a lawyer nor do I play one on TV, so it's wise to check.

And it's essential to know whether you think you've been libelled or slandered before you start waving accusations in the air, otherwise you look particularly foolish.

Peter Drobinski said...

Jane, this is a very pertinent and interesting subject, and it also ties into a question asked on our Sheffield Forum Writers' group about mentioning other people when writing memoirs. Clearly there can be potential here for skeletons to come tumbling out of closets and calling their solicitors if they read something about themselves that they don't like. Is the answer to change the names, or to seek permission from the people themselves?

Jane Smith said...

Peter, say hello to the Sheffield Forum for me--I haven't posted there for a while.

If you change people's names but they're still recognisable, then you could still be in trouble; and it's hard to write an effective memoir without making people recognisable.

The best solution is to seek proper, written permission from those who are discussed, but this can be tricky, especially if you're writing about difficult times. There's no easy solution, I'm afraid.

I'd ask your agent and publisher to advise you--publishers have legal teams to work in situations like these. I'd strongly advise against self-publishing such a book (Google the name Rebecca Brandewyne if you want to read why), and would also advise against using your local solicitor if you'd rather get your own legal advice: you need a lawyer who is a specialist in intellectual property for a definitive answer.

paul lamb said...

I've often wondered if you can slander someone by saying something about that this isn't true but that is "flattering." Suppose I said of someone, "He's too intelligent to vote for candidate X." I know that he WILL vote for X, but I say otherwise. Would this be actionable slander?

Verification word for my comment: stings.

Jane Smith said...

Paul, I'm not sure: but I think that inference can be actionable, so you probably would end up in trouble. And if you used your example, I think that you might have the voter AND Candidate X after you, because you're inferring negative stuff about them both.

Paul Lamb said...

Thank you, Jane. I hadn't considered that this would slander Candidate X, but from what I know about him . . .