The judgment of the appeals court said (about the original case)
" As relevant here, the court concluded that it was bound to follow prior appellate case law holding that statements falsely imputing homosexuality constitute defamation per se and, thus, plaintiff’s slander claim need not be dismissed despite his failure to allege special damages. "
And overruled that original court this way.
“This appeal presents the issue of whether statements falsely describing a person as lesbian, gay or bisexual constitute slander per se. Given this state’s well-defined public policy of protection and respect for the civil rights of people who are lesbian, gay or bisexual, we now overrule our prior case to the contrary and hold that such statements are not defamatory per se.”
BTW, just a nitpick, but I don’t think that anyone can be “guilty” of libel. It is no longer a criminal offence. It’s a tort. People are “liable for” defamation.
Libel per se is still a civil action. It only means the person who was libeled does not need to prove damages to get some relief.
For instance, if I said, “Peter Morris leaves his windows open at night” you could, in theory, sue me for libel saying you never leave your windows open at night.
We go to court and the court agrees, you do not leave your windows open at night. You win. Your recovery? $0.00 because you never showed you incurred any loss from what I said.
But, if I said you were a person who has AIDS that would be libel per se. You do not need to show any financial loss from what I said. You get money merely because what I said was of a particular sort that gets you money even without actual monetary damage.
I do not know how the court assesses that damage though.
(For the record, I am not making any actual claims, merely using examples so do not sue me.)
I don’t know about American law, but that isn’t true in British law. Malice is not an element. A carelessly worded piece can be seriously libelous. It depends on what a reasonable person might understand by the words. Even if the writer didn’t intend that meaning.
In the US, malice is typically required for cases like defamation of public figures.
It may not necessarily required to prove defamation against a private citizen, though is US law, truth can be a defense.
Conversely, truth is no necessarily a defense in other countries: if it’s defamatory, communicated to a third party, and causes damage, it could be a problem.
In the context of the First Amendment, public officials and public figures must satisfy a standard that proves actual malice in order to recover for libel or slander. The standard is based upon the seminal case of new york times v. sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964), where the Supreme Court held that public officials and public figures cannot be awarded damages unless they prove that the person accused of making the false statement did so with knowledge that the statement was false or with reckless disregard as to the truth or falsity of the statement. Demonstrating malice in this context does not require the plaintiff to show that the person uttering the statement showed ill will or hatred toward the public official or public figure.
So maybe it’s required in the US but not in Britain?
It’s a bit technical, but [quote=“nelliebly, post:28, topic:918600, full:true”]
I thought in libel cases the plaintiff has to establish malice aforethought. No?
[/quote]
Actual malice is a very different (and unfortunate) term from malice aforethought. It does not mean actual malice. It means knowledge of the falsity of the statement, or recklessness as to the truth or falsity of it. It applies only in certain circumstances, as the definition above explains. US libel law has a lot of variables where First Amendment rights require balancing the chilling effect on speech of libel suits vs protection from damaging false statements. There are rules around public figures, limited public figures and matters of public concern, libel per se, fact vs opinion, and the possibility of jurisdictional variation.
And to clarify some of the discussions above, for libel per se, one does not have to allege and prove special – that is, economic – damages. The person still can prove their actual damages, like emotional distress, loss of business, loss of reputation. With libel per quod, it is part of the claim the plaintiff is required to allege in the complaint and prove, that the person suffered financial damages. So, lost business, lost a job, that sort of thing. Essentially, you have to show that the thing the person wrote about you is something that really did tangibly damage you.
But my point - if the person sues for defamation/libel/slander, then now this is a civil court case. Both sides are entitled to depose the other side to establish the facts the choose to bring to court, and subpoena assorted documents. This makes it easier for Sally to prove her case if she is right, since she can find out more facts above and beyond whatever gossip she may have repeated. (As well as to ascertain truth of any claimed loss). But similarly, Mr. Doe may also seek to discover is Sally pulled the allegation out of thin air.
IANAL, AFAIK - do the sides have to apply to the judge for permission on who they can depose?
I’m pretty sure it’s not a matter of permission. A lawyer can issue a subpoena for testimony in a civil case but the witness can challenge it before a judge. I’m sure there are a ton of rules about this because I recall some lawyer commenting on the difficult and time consuming process of compelling testimony prior to a civil trial.