1. Is defamation by word of mouth normally considered to be "slander"? Why do we need to distinguish slander from libel?
Defamation by word of mouth is not always considered to be slander. Eastern Express Publisher v Claudia Mo is a case relating to television broadcasting and Tse Wai Chun Paul v Cheng Albert & Anor. is a case relating to radio broadcasting. The contents of television or radio broadcasting in these two cases are considered to be libel but not slander. The rationale behind this is that TV programmes and radio programmes would normally be recorded by their respective television/radio stations, and the general public may also record these programmes. Therefore, these programmes are considered to be a permanent form of publication and may constitute libel if their contents are proved to be defamatory (note: slander is the publication of defamatory matter by word of mouth or in some transient/temporary form).
The other important distinction between libel and slander is that libel is actionable per se (i.e. some damage to the plaintiff is presumed), whereas in the case of slander, the plaintiff has to prove damage, except for statements imputing or asserting that the plaintiff:
- has committed a criminal offence punishable by imprisonment;
- has an existing contagious/infectious disease;
- is unchaste or has committed adultery with any woman or girl; or
- is incompetent or unfit in any office, profession, trade or business.
In other words, if the subject matter is proved to be a libelous statement, or is proved to be slanderous in relation to one of the four items above, it is not necessary for the plaintiff to give evidence to the court that he or she has suffered some loss or damage (though the plaintiff may still give such evidence when the court is assessing the amount of compensation to award).
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