The History of Libel Law

by Shelby Yastrow


Bad Lies involves a lawsuit in which a famous athlete sues a popular magazine, charging that the magazine published articles that contained lies about him. Those lies, he contends, damaged his reputation so seriously that his sponsors cancelled his endorsement contracts, his fans—and even his friends—abandoned him, and his earning power suffered immeasurably.  In short, his was a lawsuit based on defamation of reputation or, more specifically, the laws of libel.


        The basic laws of the United States are based on the English Common Law dating back over many centuries. The American laws dealing with “defamation”—that is, the damage to one’s reputation or character by words alone—are also based on English precedent.


        However, the early English law did not permit a legal action based on words alone. Until the middle of the 16th century, the courts were more concerned over providing relief for the physical damage done to a body by force or violence—by knives and fists—not damage to an intangible reputation by mere words, whether spoken or printed.


        It took until the late 1500s before a common law action for defamation appeared, although there were a few “outlier” cases before then where reputational damage was recognized.


        The 1378 Statute of Scandalum Magnatum allowed important judges and church officials to bring an action if they had been insulted or defamed. The first common law defamation case on record in a civil court was brought in 1507, where the King’s Court changed its mind regarding mere words and decided they could impact the honor of a man as much, or even more so, than physical attacks. At the time, three categories of defamation existed: (1) Words accusing someone of a crime; (2) Words accusing someone of being incompetent at their job; and (3) Words accusing someone of having a socially unacceptable disease.


It wasn’t until 1660 that the English courts drew the distinction between libel and slander, the two faces of the defamation laws. Libel occurs when the defamatory words are in writing, while slander involves spoken words. Since that time, libel has always been considered to be the more serious offense, based on the reasoning that written words carry more weight than spoken ones. The rationale is that the spoken word is transient, disappearing as soon as it’s uttered. It has no permanence. But the written word remains on the page indefinitely. Furthermore, in those times before radio and television, the spoken word was most often heard by only one or a few people, but the written word could appear in pamphlets, books, or other papers that were widely circulated. Thus, the written word was seen by more people, and for a longer time.


In more modern times, the spoken word on radio or television is generally recorded on tape, and because of that, coupled with the broad audiences of those forms of media, a defamatory broadcast may likely be regarded as libelous.


In the United States, the defamation laws are tempered by the First Amendment to the United States Constitution, which guarantees a free press and the freedom of speech. However, both of those freedoms have their limitations. For example, it has long been recognized that the freedom of speech does not entitle one to scream “Fire!” in a crowded theater. Similarly, while a newspaper can be held accountable for publishing a false story, if the defamed party is a “public person,” such as a well-known celebrity or politician, then the newspaper may safely defame them with false statements as long as the lies are not written “maliciously” or with a total disregard for the truth (such as not bothering to verify the truth when it was possible to do so).


The defamation laws—libel and slander—are not complicated to explain or understand, but they can be difficult to apply when they deal with gray areas. Was the written or oral statement merely a joke not intended to be taken seriously? How does one measure the damage to something as incorporeal as a reputation? And, in the case of a verbal statement, how could one prove the exact words uttered when the speaking party denies them?


It follows that the trial of a libel or slander case can be tricky, especially in the United States where statements are often protected by the First Amendment. The most famous defamation lawyer in the United Kingdom, Richard Rampton, jokingly asked me how a lawyer can try a libel or slander case in the United States in the face of that “silly” First Amendment!


Answer: It’s not easy. But as I think we portray accurately in Bad Lies, it is essential that both the subjects of potential defamation and those who publish written and spoken information have their rights protected with equal fervor.

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