How can defamatory libel be a criminal offence?
Libel can be a tort, which is a civil wrong and so not a criminal offence. So,defamatory statements can be dealt with in the civil courts whilst in fact libel can occur in two criminal forms: defamatory libel and seditious and obscene libel.
The defamer in a criminal libel case could, in theory, be sent to prison but the law on this matter is considered a relic and so is more likely to be used by private rather than public prosecutors at the present.
To outline the differences, in a civil court then the claimant in the case (i.e. the person about whom the defamatory statement was made) will be awarded compensation for the damage to his or her reputation. In a criminal court, the libel must be seen to have the potential of leading to some breach of the peace via the publication of a defamatory statement. To explain this rationale further, one example could be an instance where the defamed person becomes so angered by this publication that there are further repercussions other than this person feeling that their reputation has been attacked.
Are the laws of criminal libel in disuse in reality?
The law of criminal libel is several centuries old and campaigners have attempted to have both criminal libel and seditious libel abolished. The argument here is that it is dangerous for such laws to remain in existence; especially in light of regimes elsewhere in the world who oppress their peoples with laws preventing free speech and attacking those who dissent from this.
In reality, the Crown Prosecution Service would be very unlikely to actually prosecute for this offence. In terms of keeping the peace, preventing disorder and controlling inflammatory behaviour then they have other tools to use in terms of the law. Judges have the tort of defamatory libel to rely upon so those who make defamatory statements are much more likely to have to pay compensation than find themselves serving a criminal sentence.
There were discussions in Parliament during the passage of the Coroners and Justice Bill 2009 on this point.
Does criminal libel have to be published?
Yes and no. In order to be treated as criminal libel then the words must be written or in some permanent form. However, they need not have been published to a third party or to the general public. It is sufficient for prosecution if the words are ‘published’ to the person about whom the defamatory statement is about. Thus, this defamed person may feel injured and consequently be inflamed enough disturb the peace with some sort of attack or revenge.
Is truth a complete defence in criminal defamatory libel?
As with the civil tort of libel, it is true that the truth of what was published about the defamed must be proven. Nonetheless, whilst this constitutes a complete defence to a libel action in the civil courts, in criminal proceedings it must be proven also that the words were published for some public benefit or interest. If the defendant does not prove this additional point then the trial will likely result in a conviction.
Can class libel be a criminal offence?
If a class of people has been libelled then this a criminal offence not a tort. However it is only a crime if the prosecution can prove that the object of the publication of the defamatory statements was to excite the hatred of the public against the particular class in question. There are other laws available to private prosecutors on behalf of a certain class: a journalist is much more likely to come to court over race relations or religious hatred laws.
Can the dead be libelled?
There is no civil libel of the dead but with criminal defamatory libel, there is the possibility of the prosecution being able to prove that words written about a dead person have provoked his/her remaining relatives to breach the peace. This would make the libel of the dead the subject of a criminal prosecution.
What are the penalties for criminal defamatory libel?
A person may be fined or sent to prison for up to a year if found guilty of publishing a defamatory statement. Additionally, if the prosecution has proven that the defendant was aware that the libel was untrue then this period of imprisonment may up to double the length.
Are private prosecutions of criminal defamatory libel still carried out?
As it stands then, the law on criminal libel can still be used by private prosecutors despite the infrequency of public prosecutions by the Crown Prosecution Service.