English Defamation Law - History

History

Modern libel and slander laws as implemented in many (but not all) Commonwealth nations as well as in the United States and in the Republic of Ireland, are originally descended from English defamation law.

The earlier history of the English law of defamation is somewhat obscure; civil actions for damages seem to have been tolerably frequent as far back as the reign of Edward I (1272–1307). There was no distinction drawn between written and spoken words, and when no pecuniary penalty was involved, such cases fell within the old jurisdiction of the ecclesiastical courts, which were only finally abolished in the eighteenth century. It seems uncertain (to say the least) whether or not any generally applicable criminal process was in place.

The crime of scandalum magnatum (spreading false reports about the magnates of the realm) was established by the Statute of Westminster 1275, c. 34, but the first fully reported case in which libel is affirmed generally to be punishable at common law is one tried in the Star Chamber in the reign of James I. In that particular case, no English authorities are cited, except for a previous case of the same nature before the same tribunal; the law and terminology appear to be taken directly from Roman sources, with the insertion that libels tended to cause a breach of the peace, and it seems probable that a not-too-scrupulous tribunal had simply found it convenient to adopt the very stringent Roman provisions regarding the libelli famosi without paying any regard to the Roman limitations. From that time, we find both the criminal and civil remedies in full operation.

Volume of litigation

An increase in defamation litigation has been noted in England from the early seventeenth century. In the south of England, this litigation rose most sharply in cases of sexual slander and were notable for the increasing number of women pursuing litigation in defence of their sexual reputation. In one respect, this pattern has been linked with increasing legal access for women. In another respect, however, it has been linked to the rise of 'middling' traders in urban centres and an increasing concern with the defence of family reputation in which a woman's sexual integrity was coterminous with the integrity of her household. A similar pattern has been noted in the northern English jurisdictions but this rise seems not to have occurred until the latter years of the seventeenth century.