Editing Defamation (section)

====Variations within common law jurisdictions====
While defamation torts are broadly similar across common law jurisdictions; differences have arisen as a result of diverging case law, statutes and other legislative action, and constitutional concerns{{efn|For instance, [[Section 2 of the Canadian Charter of Rights and Freedoms]] and the [[First Amendment to the United States Constitution]] provide protection for [[freedom of expression]] which courts must take into account in developing the case law regarding defamation}} specific to individual jurisdictions.

Some jurisdictions have a separate [[tort]] or delict of [[verbal injury|injury]], [[intentional infliction of emotional distress]], involving the making of a statement, even if truthful, intended to harm the claimant out of malice; some have a separate tort or delict of "[[invasion of privacy]]" in which the making of a true statement may give rise to liability: but neither of these comes under the general heading of "defamation". The tort of harassment created by Singapore's ''Protection from Harassment Act 2014'' is an example of a tort of this type being created by statute.<ref name=PHA2014/> There is also, in almost all jurisdictions, a tort or delict of "[[misrepresentation]]", involving the making of a statement that is untrue even though not defamatory. Thus a surveyor who states a house is free from risk of flooding has not defamed anyone, but may still be liable to someone who purchases the house relying on this statement. Other increasingly common claims similar to defamation in U.S. law are claims that a famous trademark has been diluted through tarnishment, see generally [[trademark dilution]], "[[Tortious interference|intentional interference with contract]]", and "negligent misrepresentation". In America, for example, the unique tort of [[false light]] protects plaintiffs against statements which are not technically false but are misleading.<ref name="martin">Edward C. Martin. [http://netlaw.samford.edu/Martin/AdvancedTorts/falselight.htm "False light"]. {{webarchive |url=https://web.archive.org/web/20080227192826/http://netlaw.samford.edu/Martin/AdvancedTorts/falselight.htm |date=27 February 2008 }}. [[Cumberland School of Law]], [[Samford University]]</ref><!-- US-specific? --> Libel and slander both require publication.<ref>50 Am.Jur.2d libel and slander 1–546</ref>

Although laws vary by state; in America, a defamation action typically requires that a plaintiff claiming defamation prove that the defendant:
# made a false and defamatory statement concerning the plaintiff;
# shared the statement with a third party (that is, somebody other than the person defamed by the statement);
# if the defamatory matter is of public concern, acted in a manner which amounted at least to negligence on the part of the defendant; and
# caused damages to the plaintiff.
Additionally, American courts apply special rules in the case of statements made in the press concerning public figures, which can be used as a defence. While plaintiff alleging defamation in an American court must usually prove that the statement caused harm, and was made without adequate research into the truthfulness of the statement; where the plaintiff is a celebrity or public official, they must additionally prove that the statement was made with [[actual malice]] (i.e. the intent to do harm or with reckless disregard for the truth).<ref>New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964)</ref><ref>{{cite web | url = http://cstl-cla.semo.edu/sexton/fall2010/10/index.htm | title = Us political systems | last = Sexton | first = Kevin | year = 2010 | access-date = 8 November 2010 | archive-date = 18 February 2011 | archive-url = https://web.archive.org/web/20110218044657/http://cstl-cla.semo.edu/sexton/fall2010/10/index.htm | url-status = dead }}</ref> A series of court rulings led by ''[[New York Times Co. v. Sullivan]]'', 376 U.S. 254 (1964) established that for a [[public official]] (or other legitimate public figure) to win a libel case in an American court, the statement must have been published knowing it to be false or with reckless disregard to its truth (i.e. [[actual malice]]).<ref>''[[New York Times Co. v. Sullivan]]'', 376 U.S. 254 (1964).</ref> The [[Associated Press]] estimates that 95% of libel cases involving news stories do not arise from high-profile news stories, but "run of the mill" local stories like news coverage of local criminal investigations or trials, or business profiles.<ref>{{Cite web|url=http://stylebook.fredericksburg.com/APtxt/Libel.html|title=Foreword|website=stylebook.fredericksburg.com|access-date=2017-03-30|archive-date=1 March 2021|archive-url=https://web.archive.org/web/20210301050633/http://stylebook.fredericksburg.com/APtxt/Libel.html|url-status=dead}}</ref> An early example of libel is the case of [[John Peter Zenger]] in 1735. Zenger was hired to publish the ''New York Weekly Journal''. When he printed another man's article criticising [[William Cosby]], the [[Colonial government in the Thirteen Colonies|royal governor]] of [[Province of New York|Colonial New York]], Zenger was accused of [[seditious libel]].<ref name="auto"/> The verdict was returned as ''not guilty'' on the charge of seditious libel, because it was proven that all the statements Zenger had published about Cosby had been true, so there was not an issue of defamation. Another example of libel is the case of ''[[New York Times Co. v. Sullivan]]'' (1964). The [[Supreme Court of the United States]] overruled a state court in [[Alabama]] that had found ''The New York Times'' guilty of libel for printing an advertisement that criticised Alabama officials for mistreating student [[civil rights]] activists. Even though some of what ''The Times'' printed was false, the court ruled in its favour, saying that libel of a public official requires proof of [[actual malice]], which was defined as a "knowing or reckless disregard for the truth".<ref>{{cite book | last1 = Patterson | first1 = T | title = The American Democracy | publisher = New York: McGraw-Hill | year = 2009 }}</ref>

Many jurisdictions within the [[Commonwealth of Nations|Commonwealth]] (e.g. Singapore,<ref name=DA1957/> Ontario,<ref>{{Cite web|url=https://www.ontario.ca/laws/view|title=Law Document English View|date=24 July 2014|website=Ontario.ca}}</ref> and the United Kingdom<ref>[[Defamation Act 1952]]</ref>) have enacted legislation to:
* Codify the defences of [[fair comment]] and qualified privilege
* Provide that, while most instances of slander continue to require special damage to be proved (i.e. prove that pecuniary loss was caused by the defamatory statement), instances such as slander of title shall not
* Clarify that broadcast statements (including those that are only broadcast in spoken form) constitute libel rather than slander.
Libel law in England and Wales was overhauled even further by the ''[[Defamation Act 2013]]''.

Defamation in [[Tort law in India|Indian tort law]] largely resembles that of [[England and Wales]]. Indian courts have endorsed<ref>{{Cite web|date=2020-10-19|title=Defamation under Law of Torts|url=https://lawpage.in/torts/defamation_tort|access-date=2021-01-02|website=LawPage.In|language=en|archive-date=14 August 2021|archive-url=https://web.archive.org/web/20210814222256/https://lawpage.in/torts/defamation_tort|url-status=dead}}</ref> the defences of absolute<ref>''Pukhraj v State of Rajasthan'' [1973] SCC (Cri) 944.</ref> and qualified privilege,<ref>''Rustom K. Karanjia and Anr v Krishnaraj M.D. Thackersey and Ors.'' (1970) 72 BOMLR 94.</ref> fair comment,<ref>''Ram Jethmalani Vs. Subramaniam Swamy'' 2006 (87) DRJ 603.</ref> and justification.<ref>''Santosh Tewari and Ors V State of U.P. and Anr'' 1996 (20) ACR 808.</ref> While statutory law in the United Kingdom provides that, if the defendant is only successful in proving the truth of some of the several charges against him, the defence of justification might still be available if the charges not proved do not materially injure the reputation,<ref>Defamation Act, 1952 (England).</ref> there is no corresponding provision in India, though it is likely that Indian courts would treat this principle as persuasive precedent.<ref name="analysis">{{citation|author=Ayesha|title=The Tort of Defamation: An Analysis of the Law in India and the United Kingdom|date=6 October 2010|url=http://jurisonline.in/2010/10/the-tort-of-defamation-an-analysis-of-the-law-in-india-and-the-united-kingdom/|url-status=dead|archive-url=https://web.archive.org/web/20111001185414/http://jurisonline.in/2010/10/the-tort-of-defamation-an-analysis-of-the-law-in-india-and-the-united-kingdom/|archive-date=1 October 2011|df=dmy-all}}.</ref> Recently, incidents of defamation in relation to public figures have attracted public attention.<ref>{{Cite web |url=http://www.mylaw.net/Article/Defamation_law_in_India/?past=Article%20List#.Uc1SYfkwdNM,Samarjit |title=Pattnaik, Aju John 'Defamation Law in India'2 March 2013 |access-date=16 January 2022 |archive-date=23 February 2015 |archive-url=https://web.archive.org/web/20150223185322/http://www.mylaw.net/Article/Defamation_law_in_India/?past=Article%20List#.Uc1SYfkwdNM,Samarjit |url-status=dead }}</ref>

The origins of U.S. defamation law pre-date the [[American Revolution]].{{efn|one famous 1734 case involving [[John Peter Zenger]] sowed the seed for the later establishment of truth as an absolute defence against libel charges. The outcome of the case is one of [[jury nullification]], and not a case where the defence acquitted itself as a matter of law, as before the Zenger case defamation law had not provided the defence of truth.<ref>{{cite web|title=The Trial of John Peter Zenger|url=https://www.nps.gov/feha/learn/historyculture/the-trial-of-john-peter-zenger.htm|website=National Park Service|access-date=31 October 2017|date=26 February 2015}}</ref>}} Though the [[First Amendment to the United States Constitution|First Amendment of the American Constitution]] was designed to protect freedom of the press, it was primarily envisioned to prevent censorship by the state rather than defamation suits; thus, for most of American history, the [[U.S. Supreme Court|Supreme Court]] did not interpret the First Amendment as applying to libel cases involving media defendants. This left libel laws, based upon the traditional common law of defamation inherited from the English legal system, mixed across the states. The 1964 case ''[[New York Times Co. v. Sullivan]]'' dramatically altered the nature of libel law in the country by elevating the fault element for public officials to actual malice{{snd}}that is, public figures could win a libel suit only if they could demonstrate the publisher's "knowledge that the information was false" or that the information was published "with reckless disregard of whether it was false or not".<ref>{{cite web|title=New York Times Co. v. Sullivan, 376 US 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964)|url=https://scholar.google.com/scholar_case?case=10183527771703896207|website=Google Scholar|access-date=31 October 2017}}</ref> Later the Supreme Court held that statements that are so ridiculous to be clearly not true are protected from libel claims,<ref>{{cite web|title=Hustler Magazine v. Falwell, 485 U.S. 46 (1988)|url=https://scholar.google.com/scholar_case?about=5069891851949874011|website=Google Scholar}}</ref> as are statements of opinion relating to matters of public concern that do not contain a provably false factual connotation.<ref>{{cite web|title=Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990)|url=https://scholar.google.com/scholar_case?case=7582860956470530700|website=Google Scholar}}</ref> Subsequent state and federal cases have addressed defamation law and the Internet.<ref>{{cite web|title=Court Cases|url=https://cs.stanford.edu/people/eroberts/cs181/projects/defamation-and-the-internet/sections/precedent/cases.html|website=Defamation and the Internet|access-date=31 October 2017}}</ref>

American defamation law is much less plaintiff-friendly than its counterparts in European and the [[Commonwealth of Nations|Commonwealth countries]]. A comprehensive discussion of what is and is not libel or slander under American law is difficult, as the definition differs between different states and is further affected by federal law.<ref>{{cite web|title=Defamation FAQs|url=http://www.medialaw.org/topics-page/defamation-faqs|website=Media Law Resource Center|access-date=31 October 2017|archive-date=9 September 2021|archive-url=https://web.archive.org/web/20210909002451/http://medialaw.org/topics-page/defamation-faqs|url-status=dead}}</ref> Some states codify what constitutes slander and libel together, merging the concepts into a single defamation law.<ref name="defperse">{{cite web|last1=Bossary|first1=Andrew|title=Defamation Per Se: Be Prepared to Plead (and Prove!) Actual Damages|url=https://apps.americanbar.org/litigation/committees/businesstorts/articles/spring2014-0513-defamation-prepare-plead-prove-actual-damages.html|website=American Bar Association|access-date=31 October 2017|date=3 June 2014|archive-url=https://web.archive.org/web/20171031015039/https://apps.americanbar.org/litigation/committees/businesstorts/articles/spring2014-0513-defamation-prepare-plead-prove-actual-damages.html|archive-date=31 October 2017|url-status=dead}}</ref>

New Zealand received English law with the signing of the Treaty of Waitangi in February 1840. The current Act is the ''Defamation Act 1992'' which came into force on 1 February 1993 and repealed the ''Defamation Act 1954''.<ref>[http://www.legislation.govt.nz/act/public/1992/0105/latest/whole.html ''Defamation Act 1992'' New Zealand] as at 1 March 2017</ref> New Zealand law allows for the following remedies in an action for defamation: compensatory damages; an injunction to stop further publication; a correction or a retraction; and in certain cases, punitive damages. Section 28 of the Act allows for punitive damages only when a there is a flagrant disregard of the rights of the person defamed. As the law assumes that an individual suffers loss if a statement is defamatory, there is no need to prove that specific damage or loss has occurred. However, Section 6 of the Act allows for a defamation action brought by a corporate body to proceed only when the body corporate alleges and proves that the publication of the defamation has caused or is likely to cause pecuniary loss to that body corporate.

As is the case for most [[Commonwealth of Nations|Commonwealth]] jurisdictions, Canada follows English law on defamation issues (except in [[Quebec]] where the private law is derived from French civil law). In common law provinces and territories, defamation covers any communication that tends to lower the esteem of the subject in the minds of ordinary members of the public.<ref>''Murphy v. LaMarsh'' (1970), 73 W.W.R. 114</ref> Probably true statements are not excluded, nor are political opinions. Intent is always presumed, and it is not necessary to prove that the defendant intended to defame. In ''[[Hill v. Church of Scientology of Toronto]]'' (1995), the [[Supreme Court of Canada]] rejected the ''actual malice'' test adopted in the US case ''New York Times Co. v. Sullivan''. Once a claim has been made, the defendant may avail themselves of a defence of justification (the truth), fair comment, responsible communication,<ref>{{cite CanLII|litigants=Grant v. Torstar Corp.|link=|year=2009|court=scc|num=61|format=|pinpoint=|parallelcite=[2009] 3 SCR 640|date=2009-12-22|courtname=auto|juris=}}</ref> or privilege. Publishers of defamatory comments may also use the defence of innocent dissemination where they had no knowledge of the nature of the statement, it was not brought to their attention, and they were not negligent.<ref>{{cite CanLII|litigants=Astley v. Verdun|link=|year=2011|court=onsc|num=3651|format=|pinpoint=|parallelcite=|date=2011-06-14|courtname=auto|juris=}}</ref><ref>{{cite CanLII|litigants=Farallon Mining Ltd. v. Arnold|link=|year=2011|court=bcsc|num=1532|format=|pinpoint=|parallelcite=|date=2011-11-10|courtname=auto|juris=}}</ref>