Home Article 19 Defamation and freedom of speech under tort law

Defamation and freedom of speech under tort law

April 26, 2025

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Defamation and freedom of speech under tort law — Image Source - https://shorturl.at/fsvYa

This article is written by Nalin Mashiwal pursuing Diploma in Corporate Law & Practice: Transactions, Governance and Disputes from LawSikho.

This article has been published by Anshi Mudgal.

Table of Contents

Introduction

Freedom of speech exists in clear opposition to defamation, which both operate as separate yet incompatible legal principles. False statements that damage reputation fall into the category of defamation through its two subtypes: written defamation, also known as libel and verbal defamation, known as slander. A democratic society relies on freedom of speech to protect both individual expression of thoughts and intellectual exchanges as well as information dissemination. The legal relationship between false statements and free speech protection frequently leads to conflicts because protecting one legal concept often violates freedoms guaranteed by the other.

The main problem is in finding an equilibrium between competing priorities. Defamation regulations make the job more difficult for liberty of expression because they limit the freedom to communicate openly and to execute investigative work and deliver public evaluations, the very core of democratic oversight. The various people and organisational defamation protection is extremely weak, which allows people and organisations to face false information and character assassination, which has very bad, and sometimes lasting, consequences for their finances, careers, and their personal lives.

Procedures used by different legal systems aim to safeguard freedom of speech from unreal falsities, while not shielding critical speech from abuse by defamation laws. There are, however, several measures according to which the evaluation process for defamation claims changes, including whether the plaintiff is publicly known or not publicly known and how the statement was presented in its context. Most of the judicial decisions regarding contemporary communication pattern is based on the courts’ resolution of such disputes based on the use of different doctrines worldwide for doing so in the modern digital landscape.

As social media has developed very rapidly, the methods of communication of information have dramatically changed; and as a result, the laws of defamation and freedom of speech have been changing constantly. Free expression scope, definition of Defamation in tort law and important legal concepts are discussed in this article. It also probes the ever-ongoing struggle to find the right harmony between these juxtaposed rights in an age where knowledge networking happens at speed.

Understanding defamation in tort law

Definition and elements of defamation

Defamation is a civil wrong (tort) and means the publication of false statements that tend to harm the reputation of another. In general, for a statement to be deemed defamatory, the following have to be satisfied:

False statement

The legal element is a false statement of factual information that originated from the defendant. Information that proves to be true will not make a statement defamatory, no matter how bad what is shared about someone. The plaintiff carries the responsibility to prove falsity, although courts allow some exceptions that enable defendants to prove untruth in specific conditions.

Publication to a third party

At least one person besides the plaintiff must be informed of the defamatory comment. Generally speaking, private discussions without a third party do not qualify as defamation.

Harm to reputation

The statement against the plaintiff needs to damage their reputation so they can demonstrate documented losses, which include public embarrassment combined with career impacts or emotional distress. While some jurisdictions presume harm in circumstances of specific defamatory words (defamation per se), others demand proof of real harm.

Fault (negligence or malice)

Plaintiffs need to establish their legal standing to define exactly how much responsibility must be shown by the defendant. Well-known plaintiffs need to show that defendants displayed a malicious level, which means the defendant knew claims were untrue or took their statements with reckless disregard for truthfulness. Private individuals need to show only negligence to succeed in their case.

Types of defamation

Defamation is generally classified into two main types:

Libel

The transmission of permanently published material, such as written content that includes images, under the definition of libel. Toxic information in all media formats, including print publications, television broadcasts, electronic postings and internet articles, falls under this category. Repeated exposure to enduring media containing defamation causes enduring damage to the subject’s reputation due to their everlasting nature. The law gives greater weight to libel cases when compared to slander because written and broadcast content continues to exist. The defamation cause remains present because continuously updated material continues to threaten the person’s reputation.

Slander

The law considers slander as temporary because it involves slanderous verbal statements made during verbal exchanges. Slander of communication emerges through spoken statements at public speeches and talks, and all forms of verbal exchanges. The duration of slanderous remarks through communication tends to be shorter than libellous statements because conversations evaporate quickly. Plaintiffs who file slander cases must demonstrate that defamatory spoken statements resulted in genuine damage, since these words disappear quickly.

Defamation per se vs. defamation per quod

Defamation per se

Some remarks possess such damaging qualities that neglecting proof of actual harm becomes unnecessary to justify compensation. The list of potential defamatory remarks includes false reports of sexual misconduct or criminal activities and professional incompetence, or disease contagion.

Defamation per quod

When defamatory charges are unclear in their meaning, they require supplementary information to become defamation claims. In such cases, plaintiffs must establish beyond a reasonable doubt that the statement led to genuine harm to be successful.

Freedom of speech and its legal limits

Role of freedom of speech in democracy

A democratic nation depends fundamentally on freedom of speech to enable citizens to discuss matters openly and speak their minds against authorities with minimal restrictions. Openness in public discourse combined with government accountability directly results from freedom of speech because it enables the transmission of ideas without restrictions.

Legal protections for free expression

The right to freedom of expression holds critical value according to both Article 10 of the European Convention on Human Rights (ECHR) and Article 19 of the Universal Declaration of Human Rights (UDHR). Free expression receives powerful protection under Article 19(1)(a) of the Indian Constitution and the First Amendment to the US Constitution, although both documents allow certain restrictions.

Legislative limitations on freedom of speech

Freedom of speech remains subject to legislative limitations so that people, along with society, can be protected from harm.

Hate speech or public disturbances

One established restriction to free speech involves expressions of violence or hate since such speech leads to public disturbances and endangers vulnerable communities. Social peace requires multiple national and international jurisdictions to ban hate speech to prevent violent behaviour. The European Union, along with India, represents key jurisdictions that enacted laws prohibiting hate speech.

National security and classified information

The release of confidential material which threatens national security, stability, or attempts at espionage and sedition serve as valid reasons to restrict speech. There is frequent judicial examination to determine if these restrictions satisfy the criteria for preventing governments from silencing legitimate criticism under the pretext of national security.

Defamation laws and freedom of speech

The specific regulatory framework of defamation targets to protect both reputation integrity and speech freedom through its restrictions. The law treats false remarks that hurt reputation as defamation, so most legal frameworks provide remedies but include protection to prevent defamation claims from silencing truthful statements.

Legal precedents and defamation laws in different countries

Actual malice verification in public official defamation suits was predicated on New York Times Co. v. Sullivan (1964), prevailing in public interest speech from excessive restraints. According to the defamation laws of the UK and India, there are strong prohibitions against the propagation of defamation by speech. These legal systems demonstrate how difficult it is to draw a line between how much freedom free speech should have to protect people as well as communities.

Defamation vs. free speech: the legal balancing act

The law of defamation in democratic societies endeavours, on the one hand, to protect an individual’s reputation and, on the other, to protect freedom of speech. The U.S. Supreme Court has established this nuanced equilibrium to discern between public figures and private individuals, and thus, this equilibrium has been established.

Public figures: the actual malice standard

In defamation, New Zealanders who are public figures are subject to a higher standard. The landmark New York Times Co. v. Sullivan (1964) case set forth the ‘actual malice’ standard whereby public officials had to prove that a defamatory statement was made with reckless disregard to the truth or with knowledge that it was untrue. This meant that, as regards the public concerns, unrestrained discussion was not only to be recommended, but also to be applied to all public people. This is because there are more channels of communication for the eminent personages to debunk untruthful claims, and they have also been receiving more public exposure.

Private individuals: a lower burden of proof

On the other hand, defamation law provides greater protection to private individuals. As mentioned, all that must be proven is that the defamatory statement was negligently made; in other words, that the defendant did not exercise reasonable care to find out if it was true. This differentiation recognises the fact that private persons have not sought public attention and generally do not have the same access to media channels, allowing them to defend themselves. Consequently, the law aims to shield them more robustly from defamatory harm.

Evolving legal perspectives

A call has been made to re-examine and criticise the “actual malice” threshold. Others hold, however, that the business of trade-off between free expression and reputation needs some rethinking, since 1964, much has changed in the media landscape. Notably, Justice Clarence Thomas has declared that this criterion may need to be reconsidered because it is not in line with the original intent of the Constitution. Despite these criticisms, the Supreme Court has refused to abandon the ‘actual malice’ standard, since it plays a role in preserving free speech on public issues.

Defences to defamation

There are numerous defences in a defamation case that the defendants can rely on to get away with the litigated case. These defences ensure that free speech is not in danger, but reputations are protected.

Truth: the absolute defence

A completely truthful statement serves as a defence against defamation cases because factual accuracy makes statements exempt from defamation laws. The defendant usually holds the responsibility to prove the truth in most cases.

Fair comment and honest opinion

People can use this defence for their public interest opinions when they base them on accurate facts and avoid trying to deceive others. The privilege protects journalists and politicians, and artists from defamation claims when they use factual information for criticism.

Privileged communications

Government entities enjoy total immunity under Absolute Privilege for statements delivered during judicial proceedings and legislative work, and government meetings.
The protection of Qualified Privilege applies to statements that stem from good faith intentions, yet carries exceptions when malicious intentions are detected in employment references or law enforcement reports.

Consent: waiving the right to sue

Defamation claims cannot be made by a plaintiff after consenting to the statement’s distribution. When authorised publication exceeds the approved scope, then the defence becomes invalid.

These defences help maintain a balance between free speech and reputation protection, ensuring that legal action does not stifle truthful or well-intentioned communication.

Key legal cases and precedents

1. New York Times Co. v. Sullivan, 1964 (USA)

In this case, the U.S. Supreme Court established the actual malice standard, requiring public officials to prove that defamatory statements were made knowingly false or with reckless disregard for the truth. This ruling strengthened press freedom, preventing officials from using defamation laws to suppress criticism and reinforcing the First Amendment’s protection of open debate on public issues.

2. Reynolds v. Times Newspapers, 1999 (UK)

Reynolds’ privilege protected media organisations against defamation charges as long as the statements came from responsible public organs. Three critical points needed to be reviewed to see if an accusation was defamatory: how serious it was, who provided the information and how much time the accused party had to reply. The system worked to ensure that freedom of the press was carried out in an ethical manner in media practices.

3. Subramanian Swamy v. Union of India, 2016 (India)

In this case, the Supreme Court declared that protecting reputation stands as an appropriate restriction on free speech while endorsing criminal defamation laws. The Court argued that defamation rules are necessary to protect individual dignity, notwithstanding critics’ claims that they restrict speech.

These cases illustrate how courts balance free speech with reputation protection, shaping defamation law globally.

Modern challenges in defamation and free speech

Defamation in the digital age

False statements written or posted on social media tend to breed more numbers of defamation lawsuits. Since traditional media have higher editorial standards, false details spread more quickly across social networks. When anonymity is involved in pursuing legal action, the problems increase as the individual can readily spread defamation through unidentified posts.

Corporate and political defamation cases

Since abuse of defamation laws occurs through the use of SLAPP (Strategic Lawsuits Against Public Participation) lawsuits wherein strong entities and corporations use them to silence critics and journalists rather than defending real damages, they should be avoided. It silences investigative reporting along with public discussion activities. In several locations, anti-SLAPP legislation has been adopted to prevent this type of unlawful intimidation.

Rise of fake news and misinformation

The spread of false material is leading to the rise of defamation claims against them as they distort the public perception and destroy the reputations of anyone found guilty. Governments and social media companies have come up with rules based on regulations of content moderation and fact-checking to fight false content without the imposition of unjustified speech limitations.

Conclusion

There is protection for free speech freedoms and individual reputations, and that is exactly the law of defamation. Finding appropriate hobbies has always been a task, but then digital technology has made things far more complicated than anyone could imagine.

A large number of people are exposed to such defamation content quickly through online information dissemination networks, making the damage more serious. Since internet users prefer never to leave a trace of themselves, identifying specific liable persons of made the defamatory statements becomes increasingly difficult. The present existence of these problems with internet defamation gives rise to the necessity of re-evaluation of modern legal systems.

The laws regarding defamation require modern adjustments to keep pace with current technology. The objective behind continuous law reforms is to address unique digital environment challenges to ensure fair and just protection of free speech and reputation rights.

Frequently Asked Questions (FAQS)

What is the difference between defamation, libel, and slander?

Defamation is a false statement that harms someone’s reputation. Libel is written or published defamation, while slander is spoken defamation. Libel tends to have a more lasting impact and is often treated more seriously in law. All three involve falsehoods, but the medium determines whether it’s libel or slander.

Can opinions be considered defamatory?

Opinions, therefore, are not deemed defamatory since defamation requires a false statement of fact. An opinion may, however, be defamatory if it contains or is an inference of error as to a fact, unless the facts that are the basis thereof are known or sufficiently known to the public (e.g. ‘I think he is a criminal,’ without such evidence).

What are SLAPP lawsuits, and why are they controversial?

SLAPP (Strategic Lawsuit Against Public Participation), a form of intimidation that places a financial burden on critics in order to shut them up, itself brings cases against critics. Why they are seen to be contentious is because they stifle free expression, and they are done by powerful organisations to stifle dissent. In some states, anti-SLAPP legislation is enacted to prevent the abuse.

Does freedom of speech protect defamatory statements?

It is not that the right to free expression protects defamation. Free speech allows anyone to speak their mind; however, if it is done intentionally and causes damage to another person through false or untrue information, the laws can take effect.

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