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The Distinction in Defamation

Defamation is the expression of an untrue insinuation against a person’s reputation. 

In the European Convention on Human Rights under Article 10(2), defamation is one of the valid reasons for limiting a person’s freedom of expression.

Defamation is split into two legal bases that a person can sue for: slander and libel. Slander is defamation of a person through a transient form of communication, generally speech. Libel is defamation of a person through a permanent form of communication, mostly the written word. However, defamation is not limited to linguistic forms; visual forms such as photographs, paintings, illustrations, status and bodily gestures can also be regarded as defamatory.

The claimant must prove in a case of slander that the effect of the defamation has actually been damaging to them. There is no such requirement in a case of libel.

However, there are several instances of slander where the damage is assumed and it need not be proven – this is called slander 'actionable per se'. These include: an accusation of committing an imprisonable crime; of having a contagious disease; or of being incapable in their office, profession or business.

Defamatory publications

A publication is classified as something that communicates the intended message to at least one single person other than the defendant or the subject of the communication. The defendant must also have been part of the publication of the communication. The labour involved in producing a publication often means that many people are drawn into a defamation case as a defendant. Accordingly there are several defences available to people who are not authors, editors or commercial publishers of the communication; these are to differentiate innocent printers, distributors, on-line service providers, and live broadcasters from the actual people who set out the content of the communication.

Case where internet service providers are the subject of a defamation case have been defined thus: they are not the publishers of material. However, if they do not remove the material when made aware of its presence then they can be implicated in the defamation case and have no defence under the Defamation Act 1996.