Duhaime's Law Dictionary


Defamatory Libel Definition:

Deliberate publication of defamatory lies which the publisher knows to be false.

Related Terms: Defamation, Libel, Slander

A criminal offence; malicious libel which of itself constitutes a breach of the peace or seriously or significantly injuring the reputation of another person.

In R v Stevens, Justice Twaddle of the Manitoba Court of Appeal succinctly described the offence as "character assassination".

Synonymous with criminal libel. Although some jurists take pains to distinguish defamatory libel from criminal libel they are for the most part, synonymous and interchangeable. Some jurisdictions as expressed in your statutes, case law or law book authors, prefer the term criminal libel because defamatory libel is redundant, implies that defamatory slander is a crime (it is not) and is not self-distinguishing from the tort of defamation or libel.

The term criminal defamation has even reared it’s ugly head. Defamation includes both slander and libel and as slander does not expose the slanderer to prosecution for criminal libel or defamatory libel, the term criminal defamation is seriously misleading. 

A common law offence in which written and malicious defamation in regards to a person, known to be false, that is published and in likely to either disturb the peace or cause serious harm to the target's reputation.

As Odgers wrote in 1897:

"... the State is obviously interested in repressing all such libels and lampoons as are calculated to provoke a breach of the peace, or which for any other reason tend to disturb the civil order and harmony of society. Hence it is a misdemeanour punishable with fine and imprisonment to write and publish defamatory words of any living person ... provided ... the publi­cation ... is calculated to cause a breach of the peace.

"The State intervenes in the interests of public peace and order to protect our reputations from wanton and malicious attacks. It follows, therefore, that not every libel is a crime, but only those which the State has an interest in repressing."

In R v Wicks, the Court said:

"... a criminal prosecution for libel ought not to be instituted, and, if instituted, will probably be regarded with disfavour by Judge and jury, when the libel complained of is of so trivial a character as to be unlikely either to disturb the peace of the community or seriously to affect the reputation of the person defamed."

Thus, initially, the aim of the common law offence was to prevent an interruption of public order, whereas the civil tort of libel focussed on protecting private reputation. But by 1980, the British Courts were saying (Gleaves v. Deakins):

"... criminal libel existed simply with a view of vindicating the character of the party injured, or of having revenge upon the libeller, and not in the remotest degree with any view to the protection of the public peace...."

Even though the offense is still within the common law or statute books, prosecution of defamatory libel is now very rare in modern democracies although not infrequent in the not-so-distant past. As such, there is a healthy body of case law to support this dying offense related to such issues as whether actual publication to a third-party is necessary, whether an individual can institute a prosecution for defamatory libel, and whether a defendant has access to a defense of justification.

The common law offence includes the elements of maliciousness; falsity of the information published, and that the transgressor knew the information to be false.

Thus libel is both a civil wrong (tort) and a criminal offence although in Halsbury's Laws of England, the authors predict that:

"Serious doubts have been expressed as to whether the present English law of criminal libel is consistent with the Convention for the A Protection of Human Rights and Fundamental Freedoms (1950) article 10.2."

Canada’s Criminal Code calls it “defamatory libel” and defines it consistently with the common law as, knowing that the libellous statement is false and publishing same:

“...A defamatory libel is matter published, without lawful justification or excuse, that is likely to injure the reputation of any person by exposing him to hatred, contempt or ridicule, or that is designed to insult the person of or concerning whom it is published.

“A defamatory libel may be expressed directly or by insinuation or irony in words legibly marked on any substance or by any object signifying a defamatory libel otherwise than by words.”

REFERENCES:

  • Halsbury’s Laws of England, Volume 28 “Libel and Slander”, pages 146-149.
  • Criminal Code of Canada
  • Gleaves v. Deakin 1980 AC 477 or [1980] 2 All ER 497
  • Odgers, W., An Outline of the Law of Libel (London: MacMillan & Co. Ltd., 1897)
  • R. v. Wicks [1936] 1 All ER 384
  • R v Stevens 100 Man. R. (2d) 178 (1995)
  • Spilsbury, S, Media Law (Routledge Cavendish Publishing, 2000)

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