Freedom of speech abuse may lead to harming others as is the case of defamation. Defamation occurs when one person speaks in a bad way concerning another person based on false information. Defamation, therefore, may be viewed as spreading of rumors about a person. Defamation is either a criminal offense or a civil wrong is most countries. This article examines the definition of defamation at length and makes an argument in support of laws which seek to punish those committing defamation offenses.
Defamation has been simply defined as talking ill of another person on grounds which cannot be substantiated: “the issuance of a false statement about another person, which causes that person to suffer harm” (Larson, 2003, p. 1). However, in some cases where the grounds for ill talk may be substantiated, it will still be possible for the defamation offense to be committed. In general, the following situations constitute defamation:
A false and defamatory statement concerning another; the unprivileged publication of the statement to a third party (that is, somebody other than the person defamed by the statement); if the defamatory matter is of public concern, fault amounting at least to negligence on the part of the publisher; and damage to the plaintiff. (Larson, 2003, p. 1)
Critical Analysis of Defamation
Defamation laws help to regulate freedom of expression such that the practice of this freedom does not harm others. This is possible because the law makes it clear on what should be expressed freely and what should not be. In the UK, there are principles which make it easier for one point out defamation when it is committed.
A limitation placed on the issuance of information should be backed up by the law. Such a law should be easily accessible by all and well defined to make it easy for one to distinguish what is restricted and what is not (Article 19, 2000).
A limitation placed against expression on the ground of protecting a reputation should be one that can be proved. The reputation to be protected should be demonstrable (Article 19, 2000).
The restriction placed on expression should be consistent with the values of a democratic society, for instance, if it is possible for a reputation to be upheld without placing restriction expression then no restriction on expression should be imposed (Article 19, 2000).
Purpose of Defamation Laws
Defamation laws are justified by their focus on protecting reputations. The reputations can be those of individuals or entities. Defamation laws are meant to protect reputations from being damaged through lowering their status or through any other means. Lowering of a reputation of an entity or a person can be through exposure to public ridicule. Defamation laws which tend to protect reputation that is non-existent cannot be said to be legally binding as the reputation to be protected is not demonstrable.
Defamation laws are not meant to hinder the path of constructive criticism, for instance, exposure of corruption deals. These laws do not also offer protection to a nation, flags and other national, traditional or religious objects (Article 19, 2000). Defamation laws do not give a mandate to sue on behalf of a deceased person. Lastly, defamation laws cannot be justified under the following situations:
- Safeguarding national security
- Maintaining order in the society
- Maintaining open relations at the international level
Typically, defamation laws are meant to safeguard reputations. Defamation laws are not meant to do any other thing that may be accomplished by other laws. There are limits to which defamation laws can offer protection, for instance, legitimate criticism on public authorities who engage in corruption deals cannot be restricted by defamation laws.
Defamation laws are not meant to protect the honor of symbols of national interests. Flags among other national symbols which do not have reputations should not be covered by defamation laws. It is however observed that some nations have defamation laws which cover such symbols (The Canadian Bar Association, 2012).
Family members cannot sue any person for defaming the reputation of a deceased member of the family. This is because reputation cannot be inherited; it is only some interest that can be earned from being associated with the deceased. It has been argued that “a right to sue in defamation for the reputation of deceased persons could easily be abused and might prevent free and open debate about historical events” (Article 19, 2000, p. 6).
Groups which are not legally recognized are said not to have any reputation. As such, it cannot be argued that the reputations of such groups have been defamed. However, if the group members can prove that their reputation has been defamed at person levels then they can process a lawsuit for defamation but only at individual levels (Singh, 2008).
Public bodies should not be allowed to bring up defamation cases. This is because public bodies serve the interest of the public and they should be exposed to criticism. This will uphold the spirit of democracy in running public bodies.
Criminal or Civil Offense
There is a raging debate on whether defamation should be treated as a criminal offense or a civil offense or both. Currently, many nations treat defamation as either a criminal offense or a civil offense. Article 19 (2000), argued that it would be good if defamation is only treated as a civil offense.
It further argues that criminal defamation laws must have a strict and thorough outline of proving that defamation was committed beyond any reasonable doubt (Article 19, 2000). This will include proving that the supposedly defamatory statements made are not true and that they were made with the intention of defaming. A suggestion is also made that public officials are not to initiate this process (Article 19, n.d.).
Defamation has been noted to be the issuance of statements which are not true and which are meant to harm the reputation of a person. Defamation laws are specifically meant to protect reputations. These laws should therefore not be extended to cover any other area apart from that of reputation protection.
When invoking a defamation law, it is mandatory that one ensures that his or her reputation has been harmed. The existence of a reputation needs to be shown such that its defamation can be ascertained. Groups which are not legally recognized and generally all public bodies are exempted from this protection.
Unregistered groups are not considered to have any reputation at all and as such they cannot invoke defamation actions. Though most nations treat defamation as either civil offense or criminal offense, there is a call for defamation laws to be amended into making defamation offenses only civil offenses.
Article 19. (2000). Defining defamation. Global Campaign for Free Expression. Web.
Article 19. Criminal defamation. Article 19. Web.
Larson, A. (2003). Defamation, Libel and Slander Law. Expert Law. Web.
Singh, B. (2008). Criminal offence. The Star Online. Web.
The Canadian Bar Association. (2012). Defamation: Libel and Slander. The Canadian Bar Association. Web.