What is the law on malicious falsehoods and slander?

What is the difference between slander and libel?

As a starting point, the main similarity between slander and libel is that there absolutely must be publication of a statement to a third person. In the media, libel actions are much more common than slander actions but it is still a danger, especially in broadcast journalism, as detailed below.

The most crucial difference between the two offences is that whereas libel exists in a permanent form (such as written words, a photograph), slander exists in a transient form – the most obvious example being the spoken word.

However, one exception is a defamatory statement in a public performance of a play, according to the Theatres Act 1968, – spoken word but classed as libel. Similarly, the Broadcasting Act 1990 made it a form of libel to broadcast a defamatory statement on radio or television (including cable programming).

What has to be proven in a slander case?

An important further difference between the two, in terms of court action and possible defences, is that in a libel action damage will be presumed. In a slander action however, the burden will, in most cases, fall on the claimant to prove damage affirmatively. There are four types of slander case in which actual loss/ damage does not have to proved. Most of them will seem quite outdated but still apply. They are as follows:

  • if there has been any statement suggesting that an individual has committed a crime punishable by imprisonment or death.

  • if there has been any statement suggesting that an individual suffers from any contagious or ‘objectionable’ diseases. The test used is whether the disease would cause this individual to be shunned or avoided – examples include venereal disease or leprosy.

  • if there has been any statement suggesting that a woman is not chaste.

  • if there has been any statement intended to disparage an individual in his office, profession, trade, calling or business.

What happens if slander is repeated in the media?

Media organisations have to wary of repeating third party slander by way of interviews. Thus, reporters often cross-reference details from various interviewees to avoid any answers based on negative calculations from interested parties. If the original slander is repeated by a journalist then they risk being sued for slander, in addition to the interviewee.

What constitutes a malicious falsehood?

The laws surround malicious falsehoods exist to safeguard against false statements that are made which do not constitute defamation by their nature yet may still cause damage. A malicious falsehood does not need to cast aspersions on the character of an individual or, for example, his/her fitness to hold a certain office.

How does a malicious falsehood differ from libel and slander, in theory and practice?

If published statements are not in fact defamatory, then a claimant cannot succeed with an action for libel or slander but the option to pursue an action for malicious falsehood is much more likely. In this instance, they would have to prove that the statement in question is not true. This differs with libel cases where the assumption by the court is that the defamatory statement is false and the burden is on the defendant, say the journalist, to prove that the statement is in fact true.

One good example of a malicious falsehood is that, whilst it is not defamatory to state of an individual that they retired, if a statement was published that a professional (such as a doctor, lawyer or dentist) were retired then their business or work would suffer considerably as clients and patients would make other arrangements.

What else must be proven in a malicious falsehood action?

The element of malice is an important one here, as evidenced in the name of the offence. Malice has been defined as a statement made by a person who knows it to be false or who is reckless as to its truth. Additionally it could be a false statement made by a person who is moved to this action by some improper motive. Nonetheless, negligence is not regarded as malice.

Before the Defamation Act 1952, in cases of malicious falsehoods the claimants had to prove actual damage but since this Act, this rule no longer applies to published statements in written form as long as the words were calculated to cause damage or (and this applies to both spoken and written words) if the words are likely to cause financial damage to the claimant in his office, profession, calling, trade or business.

Can you get legal aid for malicious falsehoods?

No, legal aid for malicious falsehood cases was ended by the Access to Justice Act 1999. Before then, it was possible for claimants to get legal aid for these types of cases but not libel.

What is the limitation period for malicious falsehoods?

The Defamation Act 1996 reduced the limitation period (i.e. the amount of time starting from the date of publication in which to make a claim) for both malicious falsehood and libel actions to one year. Previously, a claimant had to act within three years for libel, six years for malicious falsehood.

Can an editor make a correction and avoid being sued for malicious falsehood?

The difference between a malicious falsehood and libel is that the former could have simply been an honest mistake. If an editor realises such an error then they should publish a correction quickly to put the mistake right and greatly reduce the chances of a claimant winning any subsequent legal action on the basis of malice in the publication of the false statement.

What constitutes slander of goods and title?

Slander of goods is a false and malicious statement disparaging the claimant’s goods; slander of title is a false and malicious denial of a claimant’s title to property. Both are malicious falsehoods and can exist in permanent, written form or transient speech.