What is the law on malicious falsehoods and slander?

What is slander?

Slander occurs where someone tells one or more people an untruth about another which will harm the reputation of the person named. Unlike libel, which must exist in a permanent form (such as written words or a photograph), slander exists in a transient form. Usually this would involve the spoken word, although under the Theatres Act 1968, a defamatory statement made in a public performance of a play is classed as libel, as is one made on radio or television (under the Broadcasting Act 1990).

What has to be proven in a slander case?

In a libel action, damage will be presumed by the court. In a slander action, however, the burden will usually fall on the claimant to prove damage. There are four types of slander case in which actual loss/ damage does not have to proven:

  • if a statement suggests an individual has committed a crime punishable by imprisonment or death.
  • if a statement suggests an individual suffers from any contagious or ‘objectionable’ disease. The test used is whether the disease would cause this individual to be shunned or avoided – eg, 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 be wary of repeating third party slander by way of interviews. If the original slander is repeated by a journalist, they risk being sued for slander, in addition to the interviewee.

What is a malicious falsehood?

A claim for malicious falsehood may by brought if someone maliciously makes a false statement that causes the claimant financial loss. Unlike in defamation cases, damage to reputation is not required.

What does the claimant have to prove to succeed in a malicious falsehood action?

Claimants need to prove 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, while 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.

The element of malice must be present on the part of the defendant for a malicious falsehood claim to succeed. 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. It could be a false statement made by a person who is moved to this action by some improper motive. Negligence is not regarded as malice.

Before the Defamation Act 1952, in cases of malicious falsehoods the claimants had to prove actual damage but 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 (ie, the amount of time, starting from the date of publication, in which to make a claim) for both malicious falsehood and defamation actions to one year.

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, 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.

Article written by...
Lucy Trevelyan LLB
Lucy Trevelyan LLB

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Lucy graduated in law from the University of Greenwich, and is also an NCTJ trained journalist. A legal writer and editor with over 20 years' experience writing about the law.