Defamation

In law, defamation (also called vilification, slander, and libel) is the communication of a statement that makes a false claim, expressively stated or implied to be factual, that may harm the reputation of an individual, business, product, group, government or nation. Most jurisdictions allow legal actions, civil and/or criminal, to deter various kinds of defamation and retaliate against groundless criticism. Related to defamation is public disclosure of private facts arises where one person reveals information which is not of public concern, and the release of which would offend a reasonable person.^[1] "Unlike libel or slander, truth is not a defense for invasion of privacy."^[2]

False light laws are "intended primarily to protect the plaintiff's mental or emotional well-being."^[3] If a publication of information is false, then a tort of defamation might have occurred. If that communication is not technically false but is still misleading then a tort of false light might have occurred.^[3]

Contents [hide] 1 History 2 Types of torts 2.1 Slander and libel 2.2 Criminal defamation 3 Defenses 3.1 Truth 3.2 Privilege and malice 3.3 Other defenses 4 Defamation and freedom of speech 5 Defamation laws by jurisdiction 5.1 Europe 5.1.1 England 5.1.2 Scotland 5.1.3 Germany 5.2 United States 5.3 Singapore 5.4 Australia 5.5 Canada 5.6 Religious law 6 Related torts 7 References 8 External links

History

In the later Roman jurisprudence, from which many of modern laws descend, verbal defamations are dealt with in the edict under two heads. The first comprehended defamatory and injurious statements made in a public manner (convicium contra bonos mores). In this case the essence of the offense lay in the unwarrantable public proclamation. In such a case the truth of the statements was no justification for the unnecessarily public and insulting manner in which they had been made. The second head included defamatory statements made in private, and in this case the offense lay in the imputation itself, not in the manner of its publication. The truth was therefore a sufficient defense, for no man had a right to demand legal protection for a false reputation. Even belief in the truth was enough, because it took away the intention which was essential to the notion of injuria.^{[citation needed]}

The law thus aimed at giving sufficient scope for the discussion of a man's character, while it protected him from needless insult and pain. The remedy for verbal defamation was long confined to a civil action for a monetary penalty, which was estimated according to the significance of the case, and which, although vindictive in its character, doubtless included practically the element of compensation. But a new remedy was introduced with the extension of the criminal law, under which many kinds of defamation were punished with great severity. At the same time increased importance attached to the publication of defamatory books and writings, the libri or libelli famosi, from which we derive our modern use of the word libel; and under the later emperors the latter term came to be specially applied to anonymous accusations or pasquils, the dissemination of which was regarded as particularly dangerous, and visited with very severe punishment, whether the matter contained in them were true or false.

Types of torts

Slander and libel

The common law origins of defamation lie in the torts of slander (harmful statement in a transitory form, especially speech) and libel^[4][5] (harmful statement in a fixed medium, especially writing but also a picture, sign, or electronic broadcast), each of which gives a common law right of action.

"Defamation" is the general term used internationally, and is used in this article where it is not necessary to distinguish between "slander" and "libel". Libel and slander both require publication.^[6] The fundamental distinction between libel and slander lies solely in the form in which the defamatory matter is published. If the offending material is published in some fleeting form, as by spoken words or sounds, sign language, gestures and the like, then this is slander. If it is published in more durable form, for example in written words, film, compact disc (CD), DVD, blogging and the like, then it is considered libel.

Criminal defamation

Many nations have criminal penalties for defamation in some situations, and different conditions for determining whether an offense has occurred. ARTICLE 19, Global Campaign for Free Expression, has published global maps [2] charting the existence of criminal defamation law across the globe. The law is used predominantly to defend political leaders or functionaries of the state. In Britain, the Italian anarchist Errico Malatesta was convicted of criminal libel for denouncing the Italian state agent Ennio Belelli in 1912. While, in Canada, though the law has been applied on only six occasions in the past century, all of those cases involve libellants attached to the state (police officers, judges, prison guards). In the most recent case, Bradley Waugh and Ravin Gill were charged with criminal libel for publicly accusing six prison guards of the racially motivated murder of a black inmate (http://netk.net.au/Canada/Canada15.asp. In Zimbabwe, "insulting the President" is, by statute, (Public Order and Security Act 2001) a criminal offense.

Defenses

Even if a statement is derogatory, there are circumstances in which such statements are permissible in law.

Truth

In many legal systems, adverse public statements about legal citizens presented as fact must be proven false to be defamatory or slanderous/libel. Proving adverse, public character statements to be true is often the best defense against a prosecution for libel and/or defamation. Statements of opinion that cannot be proven true or false will likely need to apply some other kind of defense. The use of the defense of justification has dangers, however; if the defendant libels the plaintiff and then runs the defense of truth and fails, he may be said to have aggravated the harm.

Another important aspect of defamation is the difference between fact and opinion. Statements made as "facts" are frequently actionable defamation. Statements of opinion or pure opinion are not actionable. In order to win damages in a libel case, the plaintiff must first show that the statements were "statements of fact or mixed statements of opinion and fact" and second that these statements were false. Conversely, a typical defense to defamation is that the statements are opinion. One of the major tests to distinguish whether a statement is fact or opinion is whether the statement can be proved true or false in a court of law. If the statement can be proved true or false, then, on that basis, the case will be heard by a jury to determine whether it is true or false. If the statement cannot be proved true or false, the court may dismiss the libel case without it ever going to a jury to find facts in the case.

In some systems, however, notably the Philippines, truth alone is not a defense.^[7] Some U.S. statutes preserve historical common law exceptions to the defense of truth to libel actions. These exceptions were for statements "tending to blacken the memory of one who is dead" or "expose the natural defects of one who is alive." ^[8]

It is also necessary in these cases to show that there is a well-founded public interest in the specific information being widely known, and this may be the case even for public figures. Public interest is generally not "that which the public is interested in," but rather that which is in the interest of the public.^{[9] [10]}

See also: Substantial truth

Privilege and malice

Privilege provides a complete bar and answer to a defamation suit, though conditions may have to be met before this protection is granted.

There are two types of privilege in the common law tradition:

• "Absolute privilege" has the effect that a statement cannot be sued on as defamatory, even if it were made maliciously; a typical example is evidence given in court (although this may give rise to different claims, such as an action for malicious prosecution or perjury) or statements made in a session of the legislature (known as 'Parliamentary privilege' in Commonwealth countries).
• "Qualified privilege" may be available to the journalist as a defense in circumstances where it is considered important that the facts be known in the public interest; an example would be public meetings, local government documents, and information relating to public bodies such as the police and fire departments. Qualified privilege has the same effect as absolute privilege, but does not protect statements that can be proven to have been made with malicious intent.

Other defenses

Defenses to claims of defamation include:

• Truth is an absolute defense in the United States as well as in the common law jurisdictions of Canada. In some other countries it is also necessary to show a benefit to the public good in having the information brought to light.
• Statements made in a good faith and reasonable belief that they were true are generally treated the same as true statements; however, the court may inquire into the reasonableness of the belief. The degree of care expected will vary with the nature of the defendant: an ordinary person might safely rely on a single newspaper report, while the newspaper would be expected to carefully check multiple sources.
• Privilege is a defense when witness testimony, attorneys' arguments, and judges' decisions, rulings, and statements made in court, or statements by legislators on the floor of the legislature, or statements made by a person to their spouse, are the cause for the claim. These statements are said to be privileged and cannot be cause for a defamation claim.
• Opinion is a defense recognized in nearly every jurisdiction. If the allegedly defamatory assertion is an expression of opinion rather than a statement of fact, defamation claims usually cannot be brought because opinions are inherently not falsifiable. However, some jurisdictions decline to recognize any legal distinction between fact and opinion. The United States Supreme Court, in particular, has ruled that the First Amendment does not require recognition of an opinion privilege.
• Fair comment on a matter of public interest, statements made with an honest belief in their truth on a matter of public interest (official acts) are defenses to a defamation claim, even if such arguments are logically unsound; if a reasonable person could honestly entertain such an opinion, the statement is protected.
• Consent is an uncommon defense and makes the claim that the claimant consented to the dissemination of the statement.
• Innocent dissemination is a defense available when a defendant had no actual knowledge of the defamatory statement or no reason to believe the statement was defamatory. The defense can be defeated if the lack of knowledge was due to negligence. Thus, a delivery service cannot be held liable for delivering a sealed defamatory letter.
• Claimant is incapable of further defamation–e.g., the claimant's position in the community is so poor that defamation could not do further damage to the plaintiff. Such a claimant could be said to be "libel-proof," since in most jurisdictions, actual damage is an essential element for a libel claim.

In addition to the above, the defendant may claim that the allegedly defamatory statement is not actually capable of being defamatory—an insulting statement that does not actually harm someone's reputation is prima facie not libelous.

Special rules apply in the case of statements made in the press concerning public figures. 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, the statement must have been published knowing it to be false or with reckless disregard to its truth, (also known as actual malice).

Under United States law, libel generally requires five key elements. The plaintiff must prove that the information was published, the plaintiff was directly or indirectly identified, the remarks were defamatory towards the plaintiff's reputation, the published information is false, and that the defendant is at fault.

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. Media liability insurance is available to newspapers to cover potential damage awards from libel lawsuits.

Defamation and freedom of speech

Defamation laws may come into tension with freedom of speech, leading to censorship or chilling effects where publishers fear lawsuits, or loss of reputation where individuals have no effective protection against reckless or unfounded allegations. Article 10 of the European Convention on Human Rights permits restrictions on freedom of speech which are necessary for the protection of the reputation or the rights of others^[11].

Jurisdictions resolve this tension in different ways, in particular in determining where the burden of proof lies when unfounded allegations are made. The power of the internet to disseminate comment, which may include malicious comment, has brought a new focus to the issue. ^[12]

There is a broader consensus against laws which criminalize defamation. Human rights organizations, and other organizations such as the Council of Europe and Organization for Security and Co-operation in Europe, have campaigned against strict defamation laws which criminalize defamation.^[13][14] The European Court of Human Rights has placed restrictions on criminal libel laws because of the freedom of expression provisions of the European Convention on Human Rights. One notable case was Lingens v. Austria (1986).

Defamation laws by jurisdiction

Europe

England

Main article: English defamation law

Modern libel and slander laws as implemented in many but not all Commonwealth nations, in the United States, and in the Republic of Ireland, are originally descended from English defamation law. The history of defamation law in England is somewhat obscure. Civil actions for damages seem to have been relatively frequent so far back as the reign of Edward I (1272–1307),^{[citation needed]} though it is unknown whether any generally applicable criminal process was in use. The first fully-reported case in which libel is affirmed generally to be punishable at common law was tried during the reign of James I.^{[citation needed]} From that time we find both the criminal and civil remedies in full operation.

English law allows actions for libel to be brought in the High Court for any published statements which are alleged to defame a named or identifiable individual or individuals in a manner which causes them loss in their trade or profession, or causes a reasonable person to think worse of him, her or them. Allowable defenses are justification (the truth of the statement), fair comment (whether statement was a view that a reasonable person could have held), and privilege (whether the statements were made in Parliament or in court, or whether they were fair reports of allegations in the public interest). An offer of amends is a barrier to litigation. A defamatory statement is presumed to be false unless the defendant can prove its truth. Furthermore, to collect compensatory damages, a public official or public figure must prove actual malice (knowing falsity or reckless disregard for the truth). A private individual must only prove negligence (not using due care) to collect compensatory damages. In order to collect punitive damages, all individuals must prove actual malice.

Scotland

In Scots law, as in other jurisdictions which base themselves on the civil law tradition, there is no distinction between libel and slander, and all cases are simply defamation. The equivalent of the defence of justification is "veritas".

Germany

In German law, there is no distinction between libel and slander. Germany is a leader in Europe in enforcement of its defamation law,^{[citation needed]}, and lawsuits are increasing.^[15] The relevant sections of Germany's law are §90 (Denigration of the President of State), §90a (Denigration of the State and its Symbols), §90b (Unconstitutional denigration of the Organs of the Constitution), §185 ("insult"), §186 (Defamation of character), §187 (Defamation with deliberate untruths), §188 (Political defamation with increased penalties for offending against paras 186 and 187), §189 (Denigration of a deceased person), §190 (Defamation by means of a non-proven criminal conviction), §192 ("insult" with true statements), §193 (Claim to defamation by rightful interests), §194 (The Application for a criminal prosecution under these paragraphs), §199 (Cases of exchange of verbal abuse), and §200 (Method of proclamation). Paragraph 188 has been criticized for allowing certain public figures additional protection against criticism.

United States

Main article: United States defamation law

The origins of US defamation law pre-date the American Revolution; one famous 1734 case involving John Peter Zenger established some precedent that the truth should be an absolute defense against libel charges. (Previous English defamation law had not provided this guarantee.) Though the First Amendment of the U.S. Constitution was designed to protect freedom of the press, for most of the history of the United States, the Supreme Court neglected to use it to rule on libel cases. 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, however, dramatically changed the nature of libel law in the United States by establishing that public officials could win a suit for libel only if they could demonstrate publishers' "knowledge that the information was false" or that it was published "with reckless disregard of whether it was false or not". Later Supreme Court cases dismissed the claim for libel and forbade libel claims for statements that are so ridiculous to be clearly not true, or are involving opinionated subjects such as one's physical state of being. Recent cases have addressed defamation law and the internet.

Defamation law in the United States is much less plaintiff-friendly than its counterparts in European and the Commonwealth countries, due to the enforcement of the First Amendment. In the United States, a comprehensive discussion of what is and is not libel or slander is difficult, because the definition differs between different states, and under federal law. Some states codify what constitutes slander and libel together into the same set of laws. Criminal libel is rare or nonexistent, depending on the state. Defenses to libel that can result in dismissal before trial include the statement being one of opinion rather than fact or being "fair comment and criticism". Truth is always a defense.

Most states recognize that some categories of statements are considered to be defamatory per se, such that people making a defamation claim for these statements do not need to prove that the statement was defamatory.

Singapore

Singapore has perhaps the world's strongest libel laws. The country's leaders have clearly indicated to the public that libel, as they choose to define it from time to time, on the Internet will not be tolerated and that those they deem responsible will be severely punished. On March 6, 1996, the government made providers and publishers liable for the content placed on the Internet. Even the owners of cybercafes may be held liable for libelous statements posted or possibly viewed in their establishments.^[16]

In 2001, a Singapore bank was fined SG$2 million (approx. 1 million euros or 1 million US$ at the time) for accidentally publishing a mildly libelous statement during the heated discussion of a takeover bid. The mistake was corrected very quickly, and there was no intent to do harm. In fact, it was reported that no harm seems to have been done. Nevertheless, the offended parties were awarded SG$1 million each. Apparently confirming the stringency of Singapore’s defamation law, Business Times declined to report on the matter because one of the libeled parties objected.^[17]

Australia

Australian law tends to follow English law on defamation issues, although there are differences introduced by statute and by an implied constitutional limitation on governmental powers to limit speech of a political nature. As with England, Australia defines slander as communicating false or insulting words about someone directly or indirectly, verbally or through script.

A recent judgment of the High Court of Australia has significant consequences on interpretation of the law. On 10 December 2002, the High Court of Australia handed down its judgment in the Internet defamation dispute in the case of Gutnick v Dow Jones. The judgment, which established that Internet-published foreign publications that defamed an Australian in his or her Australian reputation could be held accountable under Australian libel law, has gained worldwide attention and is often (although inaccurately, see for example Berezovsky v Forbes in England^[18]) said to be the first of its kind; the case was subsequently settled.

Slander has been occasionally used to justify (and with some success) physical reaction, however usually the punishment for assault is only slightly reduced when there is evidence of provocation.

Among the various common law jurisdictions, some Americans have presented a visceral and vocal reaction to the Gutnick decision.^[19] On the other hand, the decision mirrors similar decisions in many other jurisdictions such as England, Scotland, France, Canada and Italy.

Controversial uniform legislation was passed in Australia in 2005 severely restricting the right of corporations to sue for defamation (see, eg, Defamation Act 2005 (Vic), s 9). The only corporations excluded from the general ban are those not for profit or those with less than 10 employees and not affiliated with another company.

Canada

Main article: Canadian defamation law

As is the case for most Commonwealth jurisdictions, Canada follows English law on defamation issues (although the law in the province of Quebec has roots in both the English and the French tradition). At common law, defamation covers any communication that tends to lower the esteem of the subject in the minds of ordinary members of the public.^[20] 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 him or herself to a defense of justification (the truth), fair comment, or privilege. Publishers of defamatory comments may also use the defense 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.

In Quebec, defamation was originally grounded in the law inherited from France. To establish civil liability for defamation, the plaintiff must establish, on a balance of probabilities, the existence of an injury, a wrongful act, and of a causal connection between the two. A person who has made defamatory remarks will not necessarily be civilly liable for them. The plaintiff must further demonstrate that the person who made the remarks committed a wrongful act. Defamation in Quebec is governed by a reasonableness standard, as opposed to strict liability; a defendant who made a false statement would not be held liable if it was reasonable to believe the statement was true.^[21]

Religious law

Main articles: Lashon hara and Detraction

Related torts

Some jurisdictions have a separate tort or delict of "verbal injury," "intentional infliction of emotional distress," or "convicium," 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". Some jurisdictions also have the tort of "false light", in which a statement may be technically true, but so misleading as to be defamatory. There is also, in almost all jurisdictions, a tort or delict of "misrepresentation", involving the making of a statement which is untrue even though not defamatory; thus if a surveyor states that a house is free from the risk of flooding, he or she has not defamed anyone, but may still be liable to someone who purchases the house in reliance 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, "intentional interference with contract," and "negligent misrepresentation."

Criminal laws prohibiting protests at funerals, sedition, false statements in connection with elections, and the use of profanity in public, are also often used in contexts similar to criminal libel actions.

The boundaries of a court's power to hold individuals in "contempt of court" for what amounts to alleged defamatory statements about judges or the court process by attorneys or other people involved in court cases is also not well established in many common law countries.

References

1. ^ Common Law Privacy Torts
2. ^ Invasion of Privacy [1]
3. ^ ^{a b} FALSE LIGHT by Professor Edward C. Martin - Cumberland School of Law, Samford University
4. ^ from Latin : libellus ("little book") (Webster's 1828 Dictionary, Electronic Version. Christian Technologies, Inc. (1828). Retrieved on 2006-12-31.
5. ^ Online Etymology Dictionary. Retrieved on 2006-12-31.)
6. ^ 50 Am.Jur.2d libel and slander 1-546
7. ^ Republic of the Philippines. The Revised Penal Code. Chan Robles law Firm. Retrieved on 2006-11-24. “Art. 353. Definition of libel. — A libel is public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead.”
8. ^ See, for example, Section 18-13-105, Colorado Revised Statutes
9. ^ Legal dictionary. findlaw.com. Retrieved on 2006-11-24.
10. ^ Legal Terms. legal.org. Retrieved on 2004-10-22.
11. ^ Article 10 of the European Convention on Human Rights
12. ^ BBC News, reporting the comments of Professor Michael Geist, July 31, 2006
13. ^ IRIS 2006-10:2/1: Ilia Dohel, Office of the OSCE Representative on Freedom of the Media. Representative on Freedom of the Media: Report on Achievements in the Decriminalization of Defamation
14. ^ PACE Resolution 1577 (2007): Towards decriminalisation of defamation
15. ^ Bundeskriminalamt ( Federal Police) Yearly Statistics 2006 http://www.bka.de/pks/pks2006/download/pks-jb_2006_bka.pdf
16. ^ Libel On The Internet: An International Problem
17. ^ The recent spat by the DBS bank is proof that the libel law in Singapore needs to be reformed
18. ^ House of Lords - Berezovsky v. Michaels and Others Glouchkov v. Michaels and Others (Consolidated Appeals)
19. ^ Letter From the Editor - Barron's Online
20. ^ Murphy v. LaMarsh (1970), 73 W.W.R. 114
21. ^ Société Radio-Canada c. Radio Sept-Îles inc., [1994] R.J.Q. 1811 <http://www.canlii.org/fr/qc/qcca/doc/1994/1994canlii5883/1994canlii5883.html>

Defamation Cases

(From R. H. Helmholz, ed. Select Cases on Defamation to 1600. Selden Society Publications. vol. 101. 1985.)

Defamation. Vernycome v. Fawell.

(Common Pleas 40/1024, m. 352. Easter term 1519.)

Devon. Thomas Fawell, late of Broad Clyst in the aforesaid county was attached to answer Nicholas Vernycome in a plea why, although he...[writ om.] the same Nicholas is a free man and has been of free condition from the time of his birth, the aforesaid Thomas, not ignorant of the foregoing, scheming without right to injure the said Nicholas, and utterly to destroy and undo the selfsame Nicholas, on the twenty-fourth day of October in the tenth year of the reign of the present lord king did falsely impute, speak, and utter against the same Nicholas the name and fame of servile condition, namely `bond-churl', that is, villein by blood. By which the same Nicholas has been gravely injured, weakened and made the worse in his name, fame, and in the dealings to which before then he was accustomed with honest persons in buying, selling and lawfully bargaining; to the damage of the same Nicholas L20; whereby he says that he is the worse and has damage to the value of L25. And thereof he produces suit etc.

And the aforesaid Thomas by Bartholomew Prouz his attorney comes and denies force and wrong when etc. And he says that the aforesaid Nicholas should not have his action aforesaid against him therein because he says that at that time when etc. the aforesaid Nicholas was a villein of a certain Lewis Pollard, knight, Peter Caslegh, S.T.D., John Gilbert, esquire, and of John Bodley, regardant to their manor of Broad Clyst in the county aforesaid, and that the same Lewis, Peter, John and John and all their predecessors as lords of the aforesaid manor and all those who [held] the estate in the same manor which the same Lewis, Peter, John and John now hold, are and were seised of the aforesaid Nicholas and of all his predecessors as of their villeins regardant to the aforesaid manor from time out of mind, by which the aforesaid Thomas at that time when etc. said and uttered that the aforesaid Nicholas was a neif of the aforesaid Lewis, Peter, John and John, regardant to the aforesaid manor in the form aforesaid, as he was well entitled to. And this he is ready to verify; wherefore he prays judgment whether the aforesaid Nicholas should have or maintain his action aforesaid therein against him etc.

And the aforesaid Nicholas says that he should not be barred from having his aforesaid action against the selfsame Thomas by anything alleged above because he says that he is [now] and at the same time when etc. was a free man and of free condition and not the villein of the aforesaid Lewis, Peter, John and John regardant to their manor aforesaid in the form that the aforesaid Thomas has alleged above. And he prays that this may be inquired into by the country; and the aforesaid Thomas likewise etc. Therefore the sheriff is commanded to cause to come here on the morrow of the Ascension twelve etc. by whom etc., and who neither etc., to make recognition etc., because both etc. At which day the parties come here etc. And the sheriff has not sent the writ. Therefore as before the sheriff is commanded to come here in the octaves of Holy Trinity twelve etc. to make recognition in the form aforesaid etc. From which day the aforesaid jury between the parties aforesaid in the aforesaid plea was put in respite here until that day, namely in the octaves of St Michael then next following unless the justices of the lord king assigned to take the assizes in the aforesaid county by form of the statute etc. should have come beforehand to Exeter in the county aforesaid on the Thursday next following the feast of St James the Apostle just past. And now here on that day comes the aforesaid Nicholas by his attorney aforesaid. And the aforesaid justices of assize before whom etc. have sent their record in these words;

Afterwards at the day and place stated within, before Richard Elyot, knight, and Thomas Pygot, justices of the lord king assigned to take the assizes in the aforesaid county by form of the statute etc. the within-named Nicholas Vernicome comes in person. And the within-mentioned Thomas Fawell although solemnly called does not come but makes default. Therefore let the oath of the within-recorded jury be taken against him by default. The jurors, being called, come; who being chosen, tried and sworn to tell the truth concerning the matters stated within, say on their oath that the aforesaid Nicholas is, and at the time of the within-recorded utterance was, a free man and of free condition and not the villein of the within-recorded Lewis Pollard, knight, Peter Caslegh, John Gilbert and John Bodley regardant to the within-recorded manor as the aforesaid Thomas Fawell alleges against him within. And they assess the damages of the aforesaid Nicholas by reason of the false imputation and the utterance of the fame of servile condition, beyond the charges and costs laid out relating to his suit in this matter, at L10, and for those charges and costs 66s. 8d.

Therefore it is determined that the aforesaid Nicholas should recover against the aforesaid Thomas his damages aforesaid assessed by the aforesaid jurors in the form aforesaid. And the aforesaid Thomas in mercy etc.

Defamation (sorcery). Netlingham v. Ode.

(King's Bench 27/1266, m.770. Trinity term 1578. )

Surrey. Be it remembered that at another time, namely last Easter term, before the lady the queen at Westminster, came William Netlingham by John Coxe his attorney and brought here in the court of the said lady the queen, then and there, a certain bill of his against Ralph Ode in custody of the marshal etc. in a plea of trespass on the case. And there are pledges for prosecuting, namely John Doo and Richard Roo. Which bill follows in these words:

Surrey. William Netlingham complains of Ralph Ode in custody of the marshal of the Marshalsea of the lady the queen, being before the queen herself, in that although the aforesaid William is a good, true, faithful and honest liegeman and subject of the lady the present queen, and is of good name, fame, conversation and condition, and has been held, spoken of, named, reputed and taken [to be] of such estate and bearing both among many magnates and all other subjects and liegemen as well of the said lady the present queen as of her progenitors the past kings of England from the time of his birth to the present, and has remained and continued unspotted and untainted by any stain of theft, felony, sorcery, falsity or whatsoever other magic or noxious art for the entire time aforesaid, and has never used or undertaken and sorcery or magic art or ever fallen under any suspicion of any such crime, by reason of which the same William has led a peaceful, honest, and praiseworthy life to his own great comfort; nevertheless the aforesaid Ralph, not ignorant of the foregoing, inflamed by malice and envy and stirred up by diabolical inspiration, scheming unjustly and without cause entirely to cut off, impair and denigrate the name, estate and fame of the same William, with which he had previously been imbued, and to cause the same William to be proclaimed and to fall into the reproach, contempt and vituperation of all liegemen of the said lady the present queen, so that all faithful subjects of the said lady the present queen would entirely withdraw from the company of the selfsame William, on the first day of April in the twentieth year of the reign of the said lady the present queen, at Camberwell in the county aforesaid, in the presence and hearing of divers faithful subjects of the said lady the present queen, then and there jpresent, did speak, assert and publish these false, slanderous Englist words following of the said William Netlingham, namely, `If there ever were any witch, thou (speaking to the aforesaid William the present plaintiff) art one.' And the aforesaid William says that there were many sorcerers, called witches, within this realm of England, and that the aforesaid art or sorcery, called witchcraft, is a monstrous transgression and offence against the word of God and the laws and statutes of this realm of England, and also that all those who practise the same art, called witchcraft, offend not only against the word of God and the laws and statutes of this realm of England aforesaid, but also are punished in various ways by the laws of this realm of England. By reason of the utterance and recitation of which words not only is the aforesaid William Nitlingham grievously injured and harmed in his good estate and name, in his dealings to which he was accustomed, and in the company which he had with honest persons and subjects of the said lady the present queen, but also the same William has been compelled and coerced to lay out and spend divers sums of money for clearing himself in this matter; whereof he says that he is the worse and has damage to the value of L100. And therein he produces suit.

And now, at this day, namely Friday next after the morrow of Holy Trinity this same term, until which day the aforesaid Ralph Ode had leave to imparl to the aforesaid bill and then to answer etc., before the lady the queen at Westminster come both the aforesaid William by his attorney aforesaid and the aforesaid Ralph Ode by Thomas Lane his attorney. And the same Ralph denies force and wrong when etc. And he says that the aforesaid William should not have or maintain his action aforesaid therein against him, because he says that at the aforesaid time when the utterance and speaking of the aforesaid English words specified in the aforesaid bill is supposed, he spoke and uttered these words following to the said William, namely, `I (meaning the same Ralph) will not say that thou (meaning the aforesaid William) art a witch, but if there is any witch on earth, as some say there are, I think in my conscience that thou art one;' without this, that he, the same Ralph, did speak of the said William the aforesaid English words specified in the aforesaid declaration, namely, `If there ever were any witch, thou (speaking to the aforesaid William the present plaintiff) art one,' in the manner and form that the aforesaid William complains against him above. And this he is ready to verify; wherefore he prays judgment whether the aforesaid William should have or maintain his action aforesaid against him therein etc.

And the aforesaid William Netlingham says that he should not be barred from having his action aforesaid against the selfsame Ralph by anything alleged above in plea by the aforesaid Ralph Ode, because, as before, he says that the same Ralph spoke the aforesaid English words of the said William Netlingham specified above in the aforesaid declaration, namely, `If there were ever any witch, thou (speaking to the aforesaid William the present plaintiff) art one,' in the manner and form that the aforesaid William Netlingham complains against him above. And he prays that this may be inquired by the country. And the aforesaid Ralph Ode likewise etc. Therefore let a jury therein come before the lady the queen at Westminster the Saturday next after the quindene of Holy Trinity; and who neither etc., to make recognition etc., because both etc. The same day is given to the parties aforesaid there etc., ...[common adjournments om.].

Afterwards, at the day and place mentioned within, before John Southcote, one of the justices of the lady the queen assigned to hold pleas before the lady the queen herself, and Thomas Gawdy, another justice of the said lady the queen assigned to hold pleas before the lady the queen herself, justices assigned to take the assizes in the county of Surrey by form of the statute etc., come both the within-named William Netlingham by his attorney and the within-mentioned Ralph Ode by his attorney. And the jurors of the jury of which mention is made within, being called, some of them. namely John Allen and Robert Hiller, come and are sworn on that jury. And because the rest of the jurors of that jury do not appear, therefore others from the bystanders, being chosen by the sheriff at the request of the said William and by command of the aforesaid justices, are newly selected, whose names are attached to the within-recorded panel according to the form of the statute made and provided for such cases; and certain jurors [who] are newly appointed, namely Thomas Goone, James Goulston, Milo Hooker, Geoffrey Payce, Alan Colcook, Richard Mannsfield, William Bristowe, Richard Cuddington, John Repley and Thomas Stone come, who being chosen, tried and sworn to tell the truth about the matter within together with the aforesaid jurors previously impanelled and sworn, they say on their oath that the within-recorded Ralph did speak the within-recorded false slanderous words specified in the declaration within of the said William Netlingham, namely, `If there were ever any witch, thou (speaking to the aforesaid William Netlingham) art one,' in the manner and form that the aforesaid WIlliam Netlingham has alleged in replication within. And they assess the damages of the selfsame William, by reason of the within-recorded matter, beyond the charges and costs laid out by him relating to his suit in this matter, at L6, and for those charges and costs 5s.

Therefore it is determined that the aforesaid William Netlingham should recover his damages against the said Ralph Ode assessed by the aforesaid jurors in the form aforesaid, and also L5 for his charges and costs awarded with his assent by the court of the lady the queen here in addition; which damages in all amount to L11 5s. And the aforesaid Ralph Ode in mercy.

Damages L11 5s.