Libel and slander

Libel, essentially, is defamation Htteris, the English equivalent of the civilian libellus famosus: any publication of defamatory matter in permanent form. Slander (deriving etymologically from the word "scandalum")¹⁹² is a form of iniuria re aut verbis; an attack on somebody else's reputation that is communicated by word of mouth or in some other transitory form—such as insulting noises or derisory gestures.¹⁹³ The common-law delict of slander originated in the early 16th century, and it evolved around an action "on the case".

A.K.R. Krralfy. The Action on the Case (1951), p. 118.

^¹ The distinction between libel and slander ("the result, less of conscious policy than of a series of historical accidents": John G. Fleming, Torts, p. 517; cf alsoj.M. Kaye, "Libel and Slander—Two Torts or One?", (1975) 91 LQR 539: "Lassitude, not policy or reason, brought the distinction between libel and slander to its finished state") is generally severely criticized; cf, for instance, Fleming, Torts, p. 517 ("... absurd in theory and very often mischievous in its practical operation"); Gatley on Libel and Slander (8th ed., 1981), nn. 141, 143- For satirical comments ct\ the fictitious case reports of Chicken v. Ham and Temper v. Hume and Haddock, in: A.P. Herbert, Uncommon Law (1 %9), pp. 71 sqq.; idem, Codd's Las! Case and Other Misleading Cases (1952), pp.

¹⁴⁴ Holdsworth, History, vol. VIII, pp. 363, 367; Potter's Historical Introduction to English Law (4th ed., 1958), p. 436. On the relation between damage and action on the case, cf. also Simpson, History, pp. 580 sqq. One type of slander was, however, held to be actionable without proof of damage: the imputation of a crime triable at common-law ("slander per se"). This was the hrst inroad the common law courts were able to break into the comprehensive jurisdiction of the ecclesiastical courts (ratione peccati) over defamation matters. In all other cases, it was the averment of (temporal) damages that became the decisive factor in justifying a temporal remedy and that therefore allowed the common-law courts to assert their jurisdiction against their ecclesiastical rivals. The first case appears to have been Davis v. Gardiner (1593) 4 Co Rep 16 b (the imputation being that a woman had a bastard child; as a result of this scandalous (slanderous) statement, the woman suffered special damage in the form of loss of marriage; Plucknett, History, p. 494). ^11,5 Cf. Potter, op. at., note 194. p. 435.

Generally on the history of libel and slander, cf the magisterial work of Holdsworth, History, vol. VIII, pp. 333'sqq.; cf. also V.V. Veedcr, "The History of the Law of Defamation", in: Select Essays in Anglo-American Legal History, vol. Ill (1909), pp. 446 sqq.; C.H.S. Fifoot, History and Sources of the Common Law (1949), pp. 126 sqq.; Plucknett, History, pp. 483 sqq.; Potter op. cit., note 194, pp. 429 sqq.; Kaye, (1975) 81 LQR 524 sqq. On the history of libel, cf also Denning, op. cit., note 19(1. pp. 163 sqq. The influence of the civilian delict of iniuria on the development of the English law of defamation and the historical interaction between civil law and common law have, to date, received hardl¹' my attention; cf, however, Heinz Hubner, "Defamation, Privacy", in: Helmut Coing, Knut Wolfgang Norr, Englische und kontinentale liechtsgeschichte: ein Forsdumgsprojekt (1985), pp.

¹⁴⁷ Cf, for instance, William Blackstone. Commentaries, Book IV, Ch. XI, 13: "... [they] are malicious defamations of any person, and especially a magistrate, made public by either printing, writing, signs or pictures, in order to provoke him to wrath, or expose him to public hatred, contempt and ridicule. The direct tendency of these libels is the breach of the public peace, by stirring up the objects of them to revenge, and perhaps to bloodshed.... [Blasphemous, immoral, treasonable, schismatical, seditious, or scandalous libels are punished by the English law, some with a greater, others with a less degree of severity." Chamber¹⁹⁸ assumed (an essentially criminal) jurisdiction over the matter and imposed penalties such as fines, pillory, branding or loss of ears. The Long Parliament abolished the Star Chamber in 1641, but the notion that libel constituted a grave offence tending "to the breaking of the peace and great mischief"¹⁹⁹ lingered on. When the common-law courts therefore developed the doctrine of civil libel, they considered it to be in the nature of trespass (rather than case), and consequently not to require the averment of damages.²⁰⁰ This was established in the 1670 case of King v. Lake, where Sir Matthew Hale allowed the plaintiff to sue on account of certain insulting allegations which, if spoken, would not have been actionable without proof of damage; "yet here", Hale CB continued, "they were being writ and published, which contains more malice than if they had been spoken".^{2 [5619]}