What Is Defamation? Libel, Slander and the Defences That Matter

The old distinction is between libel, defamation in a permanent form such as writing, print, broadcast or online, and slander, defamation in a passing form such as speech. The difference mattered because libel was presumed to cause damage while slander generally had to be shown to have caused financial loss. Many jurisdictions have abolished or blurred the distinction, and in practice almost all modern defamation cases concern published words, which count as libel wherever the line is still drawn.

A statement is defamatory if it would tend to lower the person in the estimation of reasonable members of society: an accusation of dishonesty, crime, incompetence in their profession, or serious personal misconduct. Insults and abuse are usually not enough; the statement has to make a claim about the person that others could believe.

The claimant has to prove that the statement was published to at least one other person, that it referred to them, and that it was defamatory in meaning. Meaning is often the whole fight. Words are read as an ordinary reasonable reader would take them, in context, including what they imply; a newspaper does not escape by stopping short of the accusation if the headline, picture and layout make it anyway. In England the claimant must also show that the statement caused or is likely to cause serious harm to their reputation, a threshold added in 2013 to filter out trivial claims.

What the claimant does not have to prove, in most common law systems, is that the statement was false. Falsity is presumed and it is for the defendant to prove the truth. The United States is the great exception: since a 1964 Supreme Court decision, a public official or public figure must prove that the statement was false and that the publisher knew it was false or recklessly disregarded whether it was, a standard called actual malice that makes American defamation cases against the press very hard to win.

The law is shaped less by what counts as defamatory than by the defences, because a true statement, however damaging, is not actionable, and neither are several kinds of false or unproven ones. The main ones:

• •Truth: the statement was substantially true, which is a complete defence whatever the motive
• •Honest opinion: it was a comment rather than a statement of fact, based on facts that were stated or known, and an honest person could have held it
• •Absolute privilege: statements in Parliament and in court proceedings cannot be sued on at all
• •Qualified privilege: reports of those proceedings, references given in good faith and similar communications are protected unless made with malice
• •Public interest: the publisher reasonably believed publication was in the public interest, which protects responsible journalism even when a story turns out to be wrong

The distinction between fact and opinion is the one that catches most people. Writing that a restaurant's food was the worst you have eaten is opinion, and protected if honestly held. Writing that the kitchen has rats is a factual claim, and if it is untrue the restaurant has a case. Courts look at whether a statement is verifiable: a reasonable reader knows a review is one person's view and a health inspection report is a claim about the world.

Online publication raised new questions that most systems have now answered. A person who reposts or shares a defamatory statement has published it again and can be liable. Platforms are generally not liable for what users post until they are told about it and fail to act, a protection that is much stronger in the United States than in Europe. Anonymous posters can be unmasked by court order. And a statement is published wherever it is read, which is why claimants have historically brought cases in London, a practice the 2013 reforms tried to curb.

A successful claimant gets damages measured by the harm to their reputation and their feelings, and can obtain an injunction against repetition and, in some systems, an order for a correction or apology. Damages in England have been capped by the courts at levels well below those for serious personal injury; American cases can reach hundreds of millions of dollars, most famously when a broadcaster settled for 787 million in 2023 over false claims about voting machines.

The persistent criticism of defamation law is that the threat of a suit silences true statements as well as false ones, because defending a case is expensive even when you win. That chilling effect is why the American standard for public figures is so demanding, why England raised the serious harm threshold, and why many jurisdictions now let defendants strike out claims brought mainly to intimidate. Where to draw that line is the argument the subject never settles.

A common belief is that certain words work as a shield. Adding allegedly, or opening a sentence with in my opinion, does not turn a factual accusation into a safe one. If you write that in your opinion a named builder steals from his customers, a court will still read it as a claim that he is a thief, and you will need to show it is true or fits another defence. The same applies to repeating a rumour and saying you are only passing it on, because each repetition counts as a fresh publication.

Other assumptions run the opposite way. In England and most common law systems the dead cannot be defamed, because the law protects the reputations of living people, so a hostile biography of a long-dead figure is not a libel against them, though a claim that reflects on living relatives might be. Companies can sue, but in England a business trading for profit must show serious financial loss. And a statement need not name anyone at all: if people who know the claimant would understand it to be about them, that is enough.

Because a defendant can answer a libel claim by proving the words true, bringing one can put the claimant's own conduct on trial. The best-known example is Oscar Wilde. In 1895 the Marquess of Queensberry, father of Wilde's companion Lord Alfred Douglas, left a card at Wilde's club accusing him of posing as a sodomite. Wilde brought a private prosecution for criminal libel, and Queensberry's lawyers set out to prove the accusation true. Faced with the evidence they had gathered, Wilde abandoned the case within days, and he was then arrested, convicted of gross indecency and sentenced to two years' hard labour.

A century later the historian Deborah Lipstadt and her publisher, Penguin, were sued in London by the writer David Irving over a book that called him a Holocaust denier. Under English law the burden lay on them to prove it, so the trial in 2000 became a detailed examination of how he had used historical sources. The judge found that Irving had deliberately misrepresented evidence and that the description was justified, and the legal costs later left Irving bankrupt. Both cases show the risk a claimant takes: a court may end up airing the allegations far more fully than the original words ever did.

Online reviews are where many people now come closest to defamation law. In England and Wales, the Defamation Act 2013 added a requirement that a statement must have caused, or be likely to cause, serious harm to the claimant's reputation. For a business, serious harm means serious financial loss, which sets a high bar for suing over a single critical review.

Reviewers are also protected by the defence of honest opinion, which covers comments that are clearly opinion, indicate the facts they are based on and could be held by an honest person. A review saying the food was bland and the service slow is opinion. A review falsely claiming that a restaurant gave customers food poisoning is a statement of fact, and that is where reviewers run real legal risk.

Defamation is a published false statement of fact that seriously damages someone's reputation, with libel the permanent form and slander the spoken one. A claimant must prove publication, reference and defamatory meaning, and in most systems the defendant must then prove truth, honest opinion, privilege or public interest; in the United States a public figure must instead prove the publisher knew or recklessly ignored that the statement was false.