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Chapter 6 ENGLISH LAW: LIBEL AND SLANDER The significance of the law of defamation is well stressed by E. C. s. Wade: Defamation is the branch of the common law which closely affects what is perhaps the most important of the political freedoms, that of speech and criticism. Its operation at all times affects the existence of a free press.1 English law draws a distinction in defamation which seems to be unknown to systems not founded on the Common Law; a defamatory statement is libel if it is cast in a form which is not purely transitory, but slander if oral (and unrecorded) words or gestures. Naturally it is not always easy to distinguish. P. F. Carter-Ruck thinks that the keenest example of a borderline case would be smoke signwriting from an aeroplane.z The Faulks Committee reporting in 1975 suggests that defamatory sky-writing would be libel because the vapour takes some little time to disperse.3 The practical difference between libel and slander is that the former is actionable per se, the latter - unless it falls within a particular exceptional category - is not actionable unless financial loss has actually been suffered. The Faulks Committee recommend the abolition of the distinction and it is worth quoting the first paragraph of their concIusions .4 The distinction between libel and slander is entirely attributable to historical accident, but for which it would never have come into being. It represents one of the few spheres (if not the only one) in which the forms of action continue to rule us from the grave. It renders this part of the law unreasonable and unnecessarily complicated and refined, carrying a host of rules and exceptions, derived partly from precedent and partly from statute, which are illogical, difficult to learn, and in certain applications, it must be added, unjust. To an outsider, at least, it appears contrary to normal concepts of justice that a personal enemy might with Copyrighted Material 62 Society and Legal Change impunity carry on a deliberate and malicious campaign of oral vilification relating, let us say, to the sexual habits of a person who does not have a profession, calling, trade or business in which the campaign would be likely to injure him. Further, it would be impossible for the victim, being unable to aver and prove actual pecuniary loss, even to obtain an injunction to stop the campaign. On the other hand, if the loss of one dinner invitation could be proved, the victim could recover substantial and even punitive damages. If in the case of libel the plaintiff may be awarded such damages as will 'compensate him for the distress, humiliation and annoyance which the libel has caused him', irrespective of any proof of actual pecuniary loss, it seems wholly unreasonable that the same should not be true of slander. That quotation has a particular interest for us even apart from the immediate topic. It reveals the belief of the members of the Committee that defamation is exceptional in being an archaic survival, out-of-step with society's needs. Experts in other fields also seem to believe that their speciality is unusual in its power of unnecessary longevity. For instance: In time, of course, the curtailment of the geographical mobility of labourers was no longer requisite. One might well expect that when the legal function served by the statutes was no longer an important one for the society, the statutes would be eliminated from the law. In fact this has not occurred. The vagrancy statutes have remained in effect since 1349. Furthermore, as we shall see in some detail later, they were taken over by the colonies and have remained in effect in the United States as well.s And L. C. B. Gower, explaining why the English Law Commission wished to codify the law of contract, wrote:6 In this sphere, the common law has not, unfortunately, continued to display its customary ability to adapt itself to changing conditions . To a small extent, but to a small extent only, this has been corrected by legislative intervention, as with the Law Reform (Frustrated Contracts) Act 1943. We need not, I think, go deeply into the historical origins of the distinction between libel and slander which was well-established by the seventeenth century.7 The distinction seems, however, to have originated in governmental suspicion of the press. Thus, not only was the publication of a libel a crime whether it were true or false, but it was...

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