What is Defamation?
Module 5: Defamation
Defamation is a false statement of fact that is harmful to someone’s reputation, and published “with fault,” meaning as a result of negligence or malice.(1)
The law of defamation dates back to the Roman Empire, but while the penalties and costs attached to defamation today are not as serious as they once were, they can still have a notorious “chilling effect,” with prison sentences or massive compensation awards posing a serious risk to freedom of expression, journalistic freedom, and dissent in many countries.
The foundation for defamation in international law is article 17 of the International Covenant on Civil and Political Rights (ICCPR), which provides for protection against unlawful attacks on a person’s honour and reputation. Article 19(3) of the ICCPR also makes reference to the rights and reputation of others as a legitimate ground for limitation of the right to freedom of expression.(2) Reputation is therefore the underlying basis in any claim of defamation, whether slander or libel.(3).
Defamation can be an important legal remedy for those who genuinely need it, but it can also be a weapon to quash dissent. There are many real examples where defamation may provide an important defence, for example in the non-consensual distribution of intimate images, a growing trend in the online era that disproportionately affects women. In these cases, defamation may provide recourse to seek justice for the non-consensual sharing of images (NCII) or other personal attacks.
However, defamation is also frequently misused, particularly by states and powerful individuals and actors to stifle free speech, as well as by non-state actors in the context of Strategic Lawsuits Against Public Participation, also known as SLAPP suits.