In modern day America, why are libel, slander and defamation covered by separate laws? In 21st century America the laws governing libel, slander and defamation are wholly separate even through they overlap in substantial areas, rather than there being a single law covering all three. Is this merely because this is the way that it was under British rule and the laws haven't been combined, or have there been attempts to combine them which have been rejected by the court system for citable reasons?
US Law Combining the traditionally separate common-law torts of libel and slander would probably be a matter not for the court system, but for the legislature, and these are matters of sate law in the US, and vary from one state to another. Many states have not codified the law of defamation by statute, and one must check court cases in each state to find the particular rules that apply in that state. As Nolo's page on &quot;Defamation Law Made Simple&quot; says: &quot;Defamation of character&quot; is a catch-all term for any statement that hurts someone's reputation. Written defamation is called &quot;libel,&quot; while spoken defamation is called &quot;slander.&quot; To the best of my knowledge, there is no US state that has three separate torts, &quot;libel&quot;, &quot;slander&quot;, and &quot;defamation&quot;. Some states, such as Illinois, have combined libel and slander into a single tort of defamation, others have not. Traditionally, in a slander case the plaintiff must prove actual damages, whereas damage could be presumed in a libel case. (see the LII page on &quot;Slander&quot; for confirmation of this.) States that have preserved the distinction retain this difference in many cases. That is one reason why some states have not combined them. Another is legislative inertia: if the existing laws are working well enough, why go to the effort of rewriting them? When the law of defamation has not been codified, the traditional reluctance of common law courts to change form where there is no significant change of substance also works against combining the torts. See also the Wikipedia page on &quot;United States defamation law&quot; Specific State Laws California: Cal. Civ. Code §§ 44, 45a, and 46. Georgia: Ga. Code Ann. §51-5-4. Illinois: 740 ILCS 165/1 Pensylvania 42 Pa. Cons. Stat. §§ 8341-8345 See &quot;State Law: Defamation&quot; from the Digital Media law Project for case citations in many US states. Non-US Law In some other common-law countries, the difference has also been preserved, probably for similar reasons. Again it will be a matter for the individual legislatures, not the courts, to combine them or leave them separate. See also the Wikipedia article on &quot;Defamation&quot;
It is actually because "this is important". Under US law, disclaimers must be "conspicuous" (UCC 2-316). So you can talk regularly when you're just stating the terms, but if you're disclaiming liability, YOU MUST BE CONSPICUOUS ("to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous"). There are many ways to make text conspicuous, so bold or larger type would do, but all-caps is pretty bullet-proof from a technological perspective. Thanks to ohwilleke for salient citations: invalidation of a plain-type buried indemnification clause, all-caps clause held to be sufficient, law review article on the conspicuousness requirement.
The definition of defamation, itself, doesn't change. What may change is whether certain kinds of false statements are &quot;so bad&quot; that it is not necessary to prove that the person was actually damaged by the statement, i.e. is defamation per se. In California this is Charges any person with crime, or with having been indicted, convicted, or punished for crime; Imputes in him the present existence of an infectious, contagious, or loathsome disease; Tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profits; Imputes to him impotence or a want of chastity; Hence, being falsely claimed to be a virgin is not defamation per se, but if you can show that you were actually damaged by the claim then you can be compensated for those damages. This is long-standing law (Tonini v. Cevasco (1896) 114 Cal. 266), which makes it difficult to erode in lieu of a change in statutory language (as in the case of the California Civil Code, amended in 1948). Barnes-Hind v. Superior Court (1986) 181 Cal.App.3d 377 provides a loophole, that the reader of a libel will recognize it as such. If no reasonable reader would perceive in a false and unprivileged publication a meaning which tended to injure the subject's reputation in any of the enumerated respects, then there is no libel at all. If such a reader would perceive a defamatory meaning without extrinsic aid beyond his or her own intelligence and common sense, then (under section 45a and the cases, such as MacLeod, which have construed it) there is a libel per se. But if the reader would be able to recognize a defamatory meaning only by virtue of his or her knowledge of specific facts and circumstances, extrinsic to the publication, which are not matters of common knowledge rationally attributable to all reasonable persons, then (under the same authorities) the libel cannot be libel per se but will be libel per quod. A &quot;reasonable&quot; reader would not recognize a claim of non-virginity as having a defamatory meaning, but would likely recognize being a professional incompetent as having a defamatory meaning. In other words, even false statements statutorily listed as being potential defamation per se will be subject to a &quot;reasonable man&quot; test: but proving actual damage is still an option.
There is, of course, no way to tell how the Court would deal with such a case today. This is not a frequently litigated issue, with lots of case law. I note that in the case you link to, the court limited the statute to false claims made "with a fraudulent purpose". This normally means that the claimant is attempting to secure an improper financial or materiel advantage. In the United States v. Tandaric case, the person convicted had falsely claimed to be a US Citizen on an employment application for a company which did not hire non-citizens, and so gained a job through this false statement. He could have been convicted of ordinary Fraud. The court has not been as protective of Fraud under the First Amendment as it has been of speech generally, or even of false but non-fraudulent speech. I am not at all sure if the court would overturn this law in a similar case today. Edit: In the United States v. Achtner case, the court wrote: But we agree with the District Court that the representation of citizenship must still be made to a person having some right to inquire or adequate reason for ascertaining a defendant's citizenship; it is not to be assumed that so severe a penalty is intended for words spoken as a mere boast or jest or to stop the prying of some busybody, ... This seems to dispose of the example in the question of a neighbor who is merly inquiring as to the character of the area, or perhaps from simple curiosity, and a false speaker who seems to get no direct benefit or advantage from the falsehood. Both linked cases involved false statements made to employers or potential employees, during wartime at that, with the false speaker's employment apparently at stake.
Meta Considerations I'm not aware of any such cases and I don't think that there are any, because if there was, the case would have generated more publicity around a &quot;glamorous&quot; issue in the law. Despite the fact that constitutional law makes it much easier to bring defamation cases when one is a private individual suing a non-media defendant in a matter of private concern, any search of the case law reveals that the defamation cases that actually get brought are those against media defendants and those involving matters of public concern. Private individuals rarely suffer enough harm to make it economical to bring a defamation suit, and people whose lives are not a matter of public concern rarely have deep pockets to hire attorneys to bring defamation lawsuits. Only Nominal Damages And No Attorneys' Fees Could Be Recovered First of all, even in a negligence per se case, where an award of nominal damages (i.e. $1 and court costs excluding attorneys' fees) is allowed as matter of law to the prevailing party, I don't think that an award of more than nominal damages would be upheld in the face of affirmative evidence that there was no actual harm to the reputation of the person defamed as a result of the publication of the defamatory statement. In defamation per se cases, nominal damages are awarded when &quot;there is no proof that serious harm has resulted from the defendant's attack upon the plaintiff's character and reputation&quot; or &quot;when they are the only damages claimed, and the action is brought for the purpose of vindicating the plaintiff's character by a verdict of a jury that establishes the falsity of the defamatory matter.&quot; RESTATEMENT (SECOND) OF TORTS § 620 cmt. a (1977). This would apply in a case of complete disbelief. Since the American rule applies to attorneys' fees in defamation cases, this would make every such suit an economic loser – which doesn't mean that someone might not act in an economically irrational way to defend their honor or something like that. Suing Increases The Harm Rather Than Mitigating It The publicity of a public trial undermines that approach in the kind of case in the hypothetical as well. Absent a lawsuit, there are one or two people who don't even believe it who heard the defamatory statement. But, if you bring a lawsuit, given the likelihood that the media will cover such a case, millions of people will hear the defamatory statement and they may very well believe those statements because they don't know any better. Even if you are ultimately vindicated at the conclusion of a trial, many people will have heard the defamatory statements after the suit is filed, but will never find out that you were vindicated many months later following a trial. Massively spreading defamatory statements about yourself that nobody would otherwise have heard about is just stupid as a matter of litigation tactics. The Presumption Of Harm To Reputation May Be Rebuttable Secondly, it isn't obvious to me that the presumption of harm to reputation in a negligence per se case is a conclusive presumption as opposed to a rebuttable presumption. For example, one can generally argue in a defamation case that someone's reputation before the defamatory statement was made is so irretrievably bad in the area related to the defamatory statement that it is impossible to damage someone's reputation any further, and so far as I know, that argument is not prohibited in negligence per se cases. For example, an intentionally false defamatory statement (which he can prove is false with an iron clad alibi and which the maker of the statement admits was made up at trial) that Ted Bundy once punched a prostitute in the nose giving her a black eye at the Moonbeam Bar at a particular date in the midst of Ted Bundy's serial killing spree, while constituting negligence per se might not state a claim for relief given that Ted Bundy's reputation for not being a violent criminal is already hopelessly tarnished by his multiple murder convictions for similar conduct. Milkovic Can Be Evaluated In Context Third, I am inclined to think that Milkovich v. Lorain Journal, 497 U.S. 1, one of the holdings is that &quot;statements that cannot reasonably be interpreted as stating actual facts about an individual are protected,&quot; together with cases such as the New York Times case reflect an evolving understanding in the law (quite distinct from the British concept of defamation which has a bit of an &quot;if you don't have something nice to say don't say anything at all&quot; to it), that defamation is simply a special kind of fraud claim in U.S. law, and that the tort of defamation is only constitutional in the United States because it is a form of fraud claim. If defamation is and must be merely a special kind of fraud, then the reliance element of a fraud claim is probably constitutionally required in a case where the existence or absence of reliance can be discerned as a matter of fact, without resorting to generalities as the court in Milkovich had to since the statement was published to a large number of people. It would not be unreasonable (and arguably constitutionally mandatory) to read a gloss on the &quot;statements that cannot reasonably be interpreted as stating actual facts about an individual are protected&quot; standard of Milkovich, to include an implied &quot;by the people to whom the statement was published&quot; clause, which would have one meaning when a large number of people in the general public heard it, and another in a context when only one or two people actually heard the statement, or when it was only heard by a group of people who would interpret it differently than the general public would. And, if so, that would be a complete defense and would not just reduce the claim to one limited to nominal damages. This is not a great stretch. For example, in California the words of an alleged libel must be considered &quot;according to the sense and meaning under all the circumstances attending the publication which such language may fairly be presumed to have conveyed to those to whom it was published.&quot; Macleod v. Tribune Publishing Co., 52 Cal.2d 536, 546-547; Selleck v. Globe International, Inc., 166 Cal.App.3d 1123, 1132. Libel Per Se No Longer Exists For Media Defendants Absent Actual Malice At one point it looked like the case Gertz v. Robert Welch, Inc., 481 U.S. 323, 349-350 (1974) might constitutionally eliminate libel per se, but this was premature. Gertz does not apply in cases involving matters of private concern to private individuals where the defendants are not media defendants. Dun &amp; Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 761 (1985) (where a defendant's speech concerned a private individual and a matter of private concern, states could allow plaintiffs to recover presumed and punitive damages even absent a showing of actual malice). But, Dun &amp; Bradstreet didn't address the question of whether the presumption of damages in a libel per se case was a conclusive presumption or a rebuttable one, because if it is a rebuttable presumption, then it could be overcome in the hypothetical of the question. And, it also doesn't address the question of whether the Milkovich analysis in a libel per se case must be context specific. In a case involving a media defendant and a private individual plaintiff the U.S. Supreme Court held in Gertz v. Robert Welch, Inc., 481 U.S. 323, 349-350 (1974) that: States may not permit recovery of presumed or punitive damages, at least when liability is not based on a showing of knowledge of falsity or reckless disregard for the truth. The common law of defamation is an oddity of tort law, for it allows recovery of purportedly compensatory damages without evidence of actual loss. Under the traditional rules pertaining to actions for libel, the existence of injury is presumed from the fact of publication. Juries may award substantial sums as compensation for supposed damage to reputation without any proof that such harm actually occurred. The largely uncontrolled discretion of juries to award damages where there is no loss unnecessarily compounds the potential of any system of liability for defamatory falsehood to inhibit the vigorous exercise of First Amendment freedoms. Additionally, the doctrine of presumed damages invites juries to punish unpopular opinion, rather than to compensate individuals for injury sustained by the publication of a false fact. More to the point, the States have no substantial interest in securing for plaintiffs such as this petitioner gratuitous awards of money damages far in excess of any actual injury. We would not, of course, invalidate state law simply because we doubt its wisdom, but here we are attempting to reconcile state law with a competing interest grounded in the constitutional command of the First Amendment. It is therefore appropriate to require that state remedies for defamatory falsehood reach no farther than is necessary to protect the legitimate interest involved. It is necessary to restrict defamation plaintiffs who do not prove knowledge of falsity or reckless disregard for the truth to compensation for actual injury. We need not define &quot;actual injury,&quot; as trial courts have wide experience in framing appropriate jury instructions in tort actions. Suffice it to say that actual injury is not limited to out-of-pocket loss. Indeed, the more customary types of actual harm inflicted by defamatory falsehood include impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering. Of course, juries must be limited by appropriate instructions, and all awards must be supported by competent evidence concerning the injury, although there need be no evidence which assigns an actual dollar value to the injury. We also find no justification for allowing awards of punitive damages against publishers and broadcasters held liable under state-defined standards of liability for defamation. In most jurisdictions jury discretion over the amounts awarded is limited only by the gentle rule that they not be excessive. Consequently, juries assess punitive damages in wholly unpredictable amounts bearing no necessary relation to the actual harm caused. And they remain free to use their discretion selectively to punish expressions of unpopular views. Like the doctrine of presumed damages, jury discretion to award punitive damages unnecessarily exacerbates the danger of media self-censorship, but, unlike the former rule, punitive damages are wholly irrelevant to the state interest that justifies a negligence standard for private defamation actions. They are not compensation for injury. Instead, they are private fines levied by civil juries to punish reprehensible conduct and to deter its future occurrence. In short, the private defamation plaintiff who establishes liability under a less demanding standard than that stated by New York Times may recover only such damages as are sufficient to compensate him for actual injury. See also Time, Inc. v. Firestone, 424 U.S. 448, 459 (1976). In the cases where it applies, Gertz requires proof of actual damages and bars the award of punitive damages, as a First Amendment requirement, and since actual damages are entirely absent in the case of the defendants in the question's hypothetical, if Gertz applied to them, they would not prevail. Now, Gertz in 1974 when it was decided, had limitations – it involved media defendants for whom actual malice could not be shown, but it did eliminate the public figure/public concern requirement. But, it isn't obvious to me that the Gertz limitations have not been expanded since then. Libel per se no longer exists in cases governed by Gertz (i.e. media defendants for whom there is no showing of actual malice). From v. Tallahassee Democrat, Inc., 400 So.2d 52 (Fla. App. 1981). Texas has expanded Gertz somewhat and held that even in cases where it does not apply, actual proof of actual damages is required to recover exemplary damages, even in libel per se cases where damages are presumed. Doubleday &amp; Co., Inc. v. Rogers, 674 S.W.2d 751, 755 (Tex. 1984).
Is it acceptable for person A (representing themselves) to refer to person B as &quot;their neighbor&quot; instead of by their name, or would that cause the suit to be dismissed? Omitting the neighbor's name in the pleadings &amp; proceedings cannot singlehandedly cause the dismissal of a defamation suit. The matter would result in dismissal only if the plaintiff repeatedly disobeys court order(s) (if any) to disclose that information. Before the proceedings get to that point, the plaintiff will have had one or more hearings to dispute the defendant's alleged need for identifying a non-party by name. When opposing to that disclosure, the plaintiff's goal is to establish that the false narrative about robbing a neighbor at gunpoint is defamatory regardless of neighbor's name. Keep in mind that the focus in a claim of defamation is the defamed person, whereas the relevance of details such as who the non-parties are pertains to context and evidence. Lastly, the fact that a party to the suit is a pro se litigant is irrelevant from both substantial and procedural standpoints.
canada You have tagged this 'criminal law', so I will stick to that, and avoid non-criminal anti-discrimination regimes. Criminal Code, s. 319 makes it an offence to wilfully incite or promote hatred against an identifiable group. It does not matter whether the person that is being communicated to is a member of the identifiable group (meaning &quot;any section of the public distinguished by colour, race, religion or ethnic origin&quot;). What matters is a strict mens rea requirement that the communication was done with the intent of promoting or inciting hatred against such a group. If the accused holds such intent, it is no defence that they mistook the person they were communicating with as not being a member of such a group. See generally, R. v. Keegstra, [1990] 3 SCR 697. Hypothetical laws If instead you are asking about what a hypothetical law could require (since you ask, &quot;If a law for example criminalises intimidating or assaulting someone who suffers from dwarfism...&quot;), then as a matter of statutory interpretation, the law could be written in a way that makes the mistake you describe a defence or it could be written in a way that does not allow that defence. E.g. &quot;Any person who assaults another, knowing that the other person is X, commits an offence...&quot; This phrasing of the law clearly would require the accused to know that the person they have assaulted is in the category X in order for the assault to fall within this specific variant of assault. E.g. &quot;Any person who assaults a person that is X, regardless of whether they know the other person to be X, commits an offence...&quot; Under this phrasing of the law, knowledge of the status of the target of the assault clearly does not matter. However, Canadian law has constitutional minimum mens rea requirements for elements of crimes that bring risk of imprisonment. If the offence is punishable by imprisonment, then the variant that essentially removes the mens rea from the element relating to the target's status would be unconstitutional.
If you are charged under the laws of Estonia (or Australia or Thailand or the UK) then the laws of the USA have no relevance whatsoever. It makes no difference if you are a US citizen, if the alleged crime happened in the USA or was perpetrated against the USA. If nation X has jurisdiction then you are tried under the laws of nation X. That is what sovereignty means. As to your specific example, Facebook does business in Estonia, therefore they are subject to Estonian law, as a US corporation they are also subject to US law and the law of every other jurisdiction they operate in (see why they need big legal departments?). If a legitimate Estonian warrant was served on them to disclose metadata or anything else then they are legally obliged to do so or be in contempt of court. Oh, and by the way, the first amendment right to free speech does not give you a right to anonymous free speech.