LIBEL and SLANDER. The law recognizes in every man the right to have his reputation unassailed by false and defama tory imputations. A defamatory imputation is one which tends to lower a man in the estimation of right-thinking men, or cause him to be shunned or avoided, or expose him to hatred, contempt, or ridicule. Such imputation, if conveyed by written or printed words, or by picture or effigy, is called libel; if conveyed by mere spoken words, or by significant looks, signs or gestures, is called slander.
The difference, then, between libel and slander is to be found in the medium through which the defamatory imputation is con veyed to the mind of the reader or hearer. It is transitory in slander; it is more or less permanent in libel. The difference is important, for in England an action for libel will lie without proof of special damage, whereas an action for slander will not lie unless damage can be proved, except in the four following cases: (I) where the words impute a crime punishable corporally, e.g., by imprisonment ; (2) where the words impute a contagious or in fectious disease; (3) where the words are spoken of, and reflect on, a man in the way of his office, profession or trade; (4) where the words impute unchastity or adultery to a woman or girl (Slander of Women act, 1891). Unless the plaintiff can bring his case within one of these four heads he can only maintain an action if he can prove that he has suffered special damage, i.e., actual loss—the loss of some material or temporal advantage which is either pecuniary or capable of being estimated in money —as the direct and natural and reasonable result of the slander, and this is so however disgraceful the imputation may be, and however certain it is that it will injure his reputation. A striking example of this rule is afforded by the decision in Jones v. Jones & Wife (1916) 2 A.C. 381, where it was held that a school master could not (in the absence of special damage) maintain an action for a verbal imputation of immorality, as the imputation was not in any way connected with his calling as a schoolmaster, and this although the jury found that the words imperilled the retention of his office and imputed that he was unfit for it.
It is not easy to discover why the law makes this distinction between an action for libel and an action for slander. The origin
of the distinction is to be found in the different histories of the remedies for the two wrongs. The reason usually advanced for the distinction is that a greater degree of mischief is probable in the case of a libel than in the case of a slander owing to the more durable publicity of libel and the fact that it can be more easily disseminated. But the soundness of this reasoning was disputed by Lord Mansfield over 1 oo years ago, and may well be disputed with even greater force in these days of world-wide broadcasting.
It is immaterial whether the defamatory imputation is con veyed by words of assertion or suggestion, or whether it is con veyed by words used in a declarative or interrogative form. In sinuation may be as defamatory as direct assertion, and sometimes even more mischievous. The effect, the tendency of the language used, not its form, is the criterion. The libeller cannot defame and escape the consequences by any dexterity of style. It is, however, often very difficult to determine whether a given state ment is defamatory. It may depend entirely on circumstances known to the persons who heard or read it. In slander, it may de pend on the manner in which the words were pronounced. Accent, emphasis, intonation, gesture may all have an influence in de termining the meaning. There are no words, however serious on the face of them, which may not be explained away by evidence that in the particular circumstances of the case they were not understood in a defamatory sense, but by way of jest, or in a sec ondary and innocent meaning. Conversely, words in themselves apparently innocent, may, with reference to certain circumstances and to persons knowing those circumstances, be shown to have been understood in a secondary and defamatory meaning. For example, the statement that Smith is "no better than his father" is on the face of it not defamatory. But if Smith's father is known by the persons to whom the words were used to have been a criminal the words would convey to them the meaning that Smith also is a criminal. In such cases the plaintiff must make the defamatory sense clear by an averment in his pleading, called an innuendo, and must prove the facts necessary to satisfy the jury that the words were understood in the defamatory sense averred.