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Slander

Slander is one form of defamation -- the other being libel -- and covers defamatory statements captured in some temporary, impermanent form (e.g., live speech).

Generally, it is more difficult to make a case for slander than for libel. This is not only because of the problem of proof (a record of unrecorded speech is more difficult to establish than that of, say, a written publication) but also because a claimant is generally required to show damages in order to bring a claim for slander (unlike libel). In effect, this means a slander claimant has to show that the slander caused him some kind of measurable financial loss.

Slander per se

The requirement that the slander claimant prove financial loss does not apply for slander per se, however.

Slander per se encompasses:

  • an allegation that the claimant committed a criminal offence that could be punishable by imprisonment;
  • the suggestion that the claimant is suffering from a contagious disease, such as leprosy or HIV/AIDS;
  • the suggestion that a woman has committed adultery or otherwise behaved in an unchaste manner; or
  • the suggestion that the claimant is not fit to carry on his trade or profession.

A person alleging any of these types of slander does not have to prove financial loss as part of their claim.

Basic questions

As discussed in the defamation overview, there are a few basic questions you need to address if you're considering a claim for slander, namely:

  • Is the statement defamatory?
  • Did the defendant "publish" the statement to a third person?
  • Does the defendant have a valid defence?

Let's take a look at each one in turn.

(1) Is the statement defamatory?

A defamatory statement is one which adversely affects the claimant's reputation.

If the defamatory meaning is not obvious on the face of the statement, the claimant must produce extrinsic evidence and explain why it adversely affects his/her reputation.

Only statements of fact are actionable as slander. Mere insults, name-calling, or "vulgar abuse" are not. To be actionable, the statement must actually injure the claimant's reputation.

(2) Did the defendant "publish" the statement to a third person?

In slander cases, publication usually occurs in live speech -- either to a single person, to several people in succession and/or to an audience of several people at one time.

As part of the publication requirement, the claimant must show that the defamatory statement actually identifies him/her. An indirect reference to the claimant may be sufficient (for instance, in the case of a celebrity, a nickname that is widely known). On the other hand, a general reference to a large group that happens to include the claimant may not be enough to give the claimant a valid basis for asserting that he/she is a victim of slander.

(3) Does the defendant have a valid defence?

When faced with a slander claim, a defendant may defend on the basis that the statement was:

  • justified;
  • fair comment; and/or
  • privileged.

To establish the statement was justified , the defendant must show that it was true or at least substantially true. (NB. When a claimant brings an action for slander, the court begins with the presumption that the claimant had a good reputation and that the statement injuring his/her reputation is false, thus putting the onus on the defendant to prove it is true.)

Another defence is known as fair comment. This defence is used where, for example, a speaker gives her opinion on a matter of public interest. A person is allowed to comment on a matter of public interest, even if it reflects poorly on the claimant. There is, however, a caveat. To create a valid defence, the "fair comment" must be an honestly held opinion, and not simply a statement made out of malice in order to make the claimant look bad. Thus, a well-reasoned opinion at a political conference, in which the speaker concludes that a politician has been dishonest or incompetent in some respect, is unlikely to give the politician grounds for a slander claim.

Turning to privilege, this defence comes in two forms. Some statements are absolutely privileged, so that they are not actionable even if they would otherwise be defamatory. Statements that people make during judicial or parliamentary proceedings are a couple of examples where absolute privilege would attach.

Qualified privilege applies to statements that people make out of some legal, moral or social duty. An example might be a statement made by witness to a crime. The subject of the investigation cannot claim that the witness has slandered him/her unless the witness spoke out of malice -- looking to get the individual into trouble and with a disregard for the truth of the matter.

(4) Time limit for bringing a claim

Normally, the limitation period for personal injury claims is three years from the date the injury occurred or -- for injuries that take the form of diseases that only become apparent gradually over time -- the date that the injured person first became aware of the injury. The limitation period for slander (indeed, all defamation claims) is much shorter, however -- only one year from the date of publication.

(5) Jury trial

Either of the parties to a slander action can, if the matter goes to trial, require that it be heard by a jury. That is not generally the case for other types of civil claims. The matter can, however, be decided by the judge alone prior to trial -- that would happen if, say, the judge concludes that one of the parties has no reasonable prospect of success.

(6) Remedies: damages and injunctions

If a slander claimant takes his claim to trial and wins, he can recover damages and costs. Typically, the court will require the losing party pay some or all of the winner's costs, just like in other types of civil proceedings.

(7) Making a claim

If you're thinking about making a claim for slander, you need to consider your position very carefully and obtain good legal advice. It is a somewhat unusual specialty, and the majority of solicitors do not have experience in this field.

You can find a quality-assured local solicitor who specialises in slander for free, which can also help you to understand the best course of action for your situation and whether you are even ready to hire a solicitor. To search for a solicitor using our directory, just type your legal issue and location in the form at the top left.

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