The victim of a tort can generally claim compensatory damages for any loss suffered as a result of the tort. The assessment of such damages and the attribution of responsibility for such loss are generally governed by the rules discussed in Chs 2 to 4 for civil wrongs in general. Specific rules for tort are discussed in this chapter: the assessment of damages and the attribution of responsibility. The assessment of compensatory damages for personal injury, which are usually claimed in tort, is discussed.

Dean John Wade, who replaced the great torts scholar William Prosser on the Restatement (Second) of Torts, put the finishing touches on the defamation sections in 1977.1 Apple Computer had been founded a year before, and Microsoft two, but relatively few people owned computers yet. The twenty-four-hour news cycle was not yet a thing, and most Americans still trusted the press.2

The laws of defamation and privacy are at once similar and dissimilar. Falsity is the hallmark of defamation – the sharing of untrue information that tends to harm the subject’s standing in their community. Truth is the hallmark of privacy – the disclosure of facts about an individual who would prefer those facts to be private. Publication of true information cannot be defamatory; spreading of false information cannot violate an individual’s privacy. Scholars of either field could surely add epicycles to that characterization – but it does useful work as a starting point of comparison.

In the spring of 2022, visitors to the Smoking Gun website would find a challenging “game, where [one’s] wasted time [was] well spent.”1

Coordinated campaigns of falsehoods are poisoning public discourse.1 Amidst a torrent of social-media conspiracy theories and lies – on topics as central to the nation’s wellbeing as elections and public health – scholars and jurists are turning their attention to the causes of this disinformation crisis and the potential solutions to it.

Deep fakes are a special kind of counterfeit image that is difficult to distinguish from an authentic image. They may be used to represent a person doing any act and are generated using advanced machine learning techniques. Currently, such an appropriation of personality is only actionable if the circumstances disclose one of a number of largely unrelated causes of action. As these causes of action are inadequate to protect claimants from the appropriation of their personalities, there should be a new independent tort or statutory action for the appropriation of personalities which is grounded in the protection of a person’s dignitary interests.

The tort of defamation protects the reputation of individuals in society. A cause of action arises where one individual publishes a false matter about another that lowers the reputation of the latter in the eyes of ordinary and reasonable members of the society. While many of the torts covered in this book seek to protect the bodily integrity of individuals, the tort of defamation seeks to protect their reputation. Defamation laws are concerned with balancing freedom of speech with the protection of individuals’ reputation, character and standing in the community. The increased use of social media has a significant role to play in defamation, with the speed and ease of publication on the internet creating new sites for defamation action. Additionally, the emergence of novel technologies and methods of sharing defamatory posts online – such as hashtags, emojis and memes – have raised novel questions about application of traditional defamation principles to the modern technological landscape. This makes defamation a highly relevant tort in contemporary society.

As stated earlier in this Part of the guide, it can be helpful to determine the defined standard, or benchmark, for the author’s perspective, action or statement, whether that is for a fictional character or plot, or in a non-fiction work (see Identifying the explanatory framework within a text). Once you have clarified that and the author’s intention, the next step is to consider whether there are any potential legal consequences.

As an editor, you should have a basic understanding of copyright, libel, defamation and related legislation, sufficient to be able to identify when a legal reading is needed. However, you should not be expected to provide that legal reading, regardless of how familiar you are with the legislation.

Chapter 4 addresses the rising civil costs of dissent. It examines the various costs and liabilities that apply to protest organizers, participants, and supporters. These include permit fees, damages resulting from personal injury lawsuits, statutory penalty enhancements, and loss of public benefits. The chapter makes the case for stricter First Amendment scrutiny of these costs and argues that certain fee-shifting arrangements and civil causes of action violate the First Amendment. It encourages public officials to commit to reducing rather than piling on the costs of dissent.

This chapter discusses the right to freedom to expression and to freedom of information as it is protected by the European Convention on Human Rights, other Council of Europe instruments, in EU law and in international instruments. Attention is also paid to topics such as hate speech, defamation, press freedom and access to government information. In the final section, a short comparison between the different instruments is made

This chapter introduces and discusses the approach of each body to deference and subsidiarity, and assesses how the differences may affect convergence and fragmentation. From the margin of appreciation (MoA), typical of the European Court, to the conventionality control (CC) of the Inter-American Court, the chapter investigates all the different shades of subsidiarity and deference and put them in a comparative perspective. Moreover, through specific examples, this chapter shows how different approaches may trigger fragmentation (such as in the headscarf cases) and how convergence on the level of deference and subsidiarity may, on the contrary, foster convergence (such as in defamation cases).

Contempt, cursing, and defamation all actively caused harm to others and threatened to destabilize social hierarchies of gentility. As politeness became the political language that enabled the exercise of power by elites and allowed them to recognize each other as the rightful possessors of public authority, criminal prosecutions of uncivil speech helped define political roles and relationships. Contempt prosecutions punished impolite speech from the lower orders, but the law also rewarded appropriately submissive speech (such as apologies) from them. The fact that these negotiations occurred exclusively among men reflects how both the politeness regime and the king’s peace itself were increasingly marginalizing women. The vast majority of those prosecuted for cursing were men of relatively low social status; this offense was understood to threaten the polite ethos and the civil order. Defamation became in the eighteenth century a crime of the lower orders, while polite gentlemen channeled their own defamatory impulses into a highly specific and legally protected written form: satire.

In the defamatory stories about Raúl, storytellers relate an extravagant catalog of cruel “pranks” to which elites supposedly subjected Raúl for their own sadistic entertainment. In addition to satisfying audiences’ thirst for voyeuristic violence against a Black man, these scenes – full of lurid nudity, homosocial sexuality, and near-death experiences – cast him as hapless and devoid of will. Contemporaneous sources (1916–30) do show a marked degradation in visual and textual representations of Raúl – he becomes less “bat” or mysterious creature of the night, and more blood-sucking parasite, ridiculous clown, or punching-bag. I trace Raúl’s reduction to caricature to the 1916 comic strip “The Adventures of El Negro Raúl,” a hugely popular weekly publication in which a bumbling, hapless, and mistreated Raúl, rendered in blackface style, is the main character. Many more such portrayals would follow. Generations of storytellers who later recounted Raúl’s life, skipping over everything that made him extraordinary, looked at these sources and took them as evidence of the idea that Raúl was, in fact, a sorry buffoon. But they get the causation backward. It was the fanciful stories of degradation told in these texts and images that caused Raúl’s fame to sour, to become infamy. And the defamatory stories writers and artists told about Raúl narrowed his choices, forcing him to step into a complicated relationship with the young men of the city’s elite that often involved mistreatment (if not quite the sensational “pranks” related in later stories). The tenuous balancing act of Black celebrity, always challenging, became especially difficult to pull off after 1916, as a newly threatening form of blackness burst onto the national stage with momentous shifts in national politics – the election of the first president through universal male suffrage. The removal of an entrenched aristocracy from power, and the rise of “masses” considered “black” in their barbarism (if not their actual ancestry), made Raúl’s character – Black in both the racial and class senses of the word – a scapegoat and a useful object lesson in how not to be Argentine. Raúl’s alluring visibility morphed into punitive and risible hypervisibility, fed by broader social and cultural narratives – suspicion of panhandlers and vagrants during the economic depression, the maligning of social climbers in the era’s tangos, or an obsession with fallen celebrities in the sensationalist press – but especially by racial stories about specifically Black celebrities who soared too high and were destined to die in abject misery and oblivion.

Chapter 6 examines civil disputes, most of them unreported, in which individuals – white and generally of middling status – took each other to court over reputational claims. These cases demonstrate the centrality of courts as fora for disputes in Massachusetts, specifically in the Boston and Worcester areas, whereas Nova Scotia saw substantial regional variation, associated with religion, language, indigeneity and lawyer availability, from Pictou to Yarmouth to Halifax. Nova Scotia had far fewer defamation cases both absolutely and relative to population. Massachusetts courts more frequently awarded windfalls, and the costs to a plaintiff of bringing a suit and then dropping it were higher in Nova Scotia. As well, in Massachusetts the writ of attachment was undoubtedly attractive to plaintiffs who wanted to make life difficult for a defendant before trial. This writ was not available for such purposes in Nova Scotia. Women in Massachusetts, far more than in Nova Scotia, turned to courts for redress, and courts were receptive to their claims, especially to those of self-supporting single women.