Distinction in Defamation – the difference between slander and libel

6th November 2019

According to 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 publication

A ‘publication’ here 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.

Cases where internet service providers are the subject of a defamation action 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.

Social media

Social media is now a hugely relevant part of the way that individuals express their views and opinions. The messages that they share can find their way to the screens of readers worldwide within a few minutes, and could easily lead to a business or an individual being defamed.

Can sharing a post be deemed to be ‘publishing’?”

‘Retweets’ are the most obvious example here. Twitter can monitor the number of ‘impressions’ a tweet or retweet has had, meaning one can ascertain how many times people have seen the tweet/retweet. Once there are impressions and reputational harm has been suffered, the injured party may be able to pursue a claim for online libel.

The law of libel does apply to content in retweets - and social media in general - in that material can be deemed to be a defamatory statement in permanent form. The claimant would need to establish with evidence, that the publication has caused or is likely to cause serious reputational damage – this is the standard requirement of any defamation claim under section 1(1) of the Defamation Act 2013.

Similarly, the usual defences of truth or honest opinion under sections 2 and 3 of the Defamation Act 2013 do apply. That said, it is also important to note that if the amount of engagement with a publication is relatively low, then a claim under libel may be difficult unless the claimant can establish with evidence that the post has caused or is likely to cause serious reputational harm. Conversely, the more engagement there is with a certain tweet/retweet, the greater the likelihood of reputational damage.

So yes, a retweet may be considered to be a form of republication, therefore the person who has retweeted the statement, could also be held liable for libel when retweeting defamatory content. So effectively, the person who retweeted the content person could be held liable to the same degree as the person who communicated the original defamatory words or material.

In 2013, a defendant named Alan Davies was ordered to pay £15,000 in settlement after retweeting a Sally Bercow tweet that suggested Lord McAlpine, a former leading Conservative politician, had committed child abuse. The claimant planned to sue at least 10,000 other people who had retweeted Bercow’s tweet. He decided to drop all defamation claims against retweeters who had a following of less than 500.

In conclusion

Defamation is apparent when one person publishes a statement or material about another person that is untrue and is damaging to the claimant’s reputation or likely to cause such harm – this is the case even if the defendant has simply republished a statement made by another.

Disclaimer: This information is for general guidance regarding rights and responsibilities and is not formal legal advice as no lawyer-client relationship has been created. Note that the information was accurate at the time of publication but laws may have since changed.

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