In a world of mass media, are slander claims on the way out? Amber Melville-Brown traces the evolution of this form of legal redress and examines the impediments claimants need to overcome

'Slanderers are like flies; they leap over all a man's good parts to light upon his sores.' This was the view of John Tillotson, the 17th century English archbishop and one-time dean of St Paul's Cathedral.

But while it appears from media reports that modern man is busy squashing libellous flies, it is not so clear whether he is as keen at swatting slanderous ones as were his forebears.

We no longer live in the days in which gauntlets are flung down and men risk life and limb to protect their reputations from being besmirched.

Name and honour are not what they once were.

But while the libel action abounds, it seems that its less forthright sibling is not necessarily a thing of the past.

If not taking centre stage, slander will be playing a bit part at the Royal Courts of Justice this year.

One case recently grabbing the legal headlines was brought by law firm Howe & Co.

It sued one of its former employees, Patricia Burden, over comments she made to another employee concerning alleged acts and omissions of the partnership.

At a recent hearing, Mr Justice Eady held that there were sufficient issues to be considered at trial to reject the defendant's application to strike out the claim, including possible consent to publication of the comments, qualified privilege and malice.

A settlement has since been reached, with a statement in open court this week announcing that Ms Burden had not sought to allege in the proceedings that the comments complained of were true and undertook not to repeat them.

And this month, the case of Brian Maccaba v Dyan Lichtenstein is being heard by a judge and jury.

It concerns allegations said to have been circulated by a judge of the rabbinic court in the Jewish community about a Jewish businessman.

Libel and slander are two sides of the same coin: causes of action in defamation to protect against and compensate for the damage to a person's reputation caused by the publication of false and damaging allegations.

While the former deals with the written word or statements in permanent form - including statements made on the radio, television and so on - the latter deals with the ephemeral, spoken word.

Slander was probably born as soon as man was able to talk.

While a Neanderthal insult may have been an obscene gesture and his opponent's response a thwack on the head, civilised man developed other ways both to insult his colleagues and to protect his reputation.

The ultimate protection of the law codified that, and various statutes and a large body of case law has grown up over the years.

Freedom of speech is now guaranteed by the Human Rights Act 1998, which incorporates into UK law the European Convention of Human Rights.

But slander and libel are also governed by their own statutes in England and Wales.

In ascending, chronological order, they include: the Libel Act 1843, the Law of Libel Amendment Act 1888, the Slander of Women Act 1891, the Defamation Act 1952 and the Defamation Act 1996.

Differences exist between slander and libel that create extra hurdles for the slander claimant than for his libel colleague.

Mark Stephens, a media partner at London-based Finers Stephens Innocent, says 'a pernicious combination of pre-entry requirements, evidential problems and generally low damages' make slander claims less certain and therefore less likely to go to trial, giving the impression that slander is libel's poor relation.

A party may only bring proceedings for slander where he can show that special damage - that is, foreseeable loss - has resulted from the publication.

This is subject to certain specified exceptions where the allegation is that the claimant is guilty of a criminal offence punishable by a term of imprisonment; is suffering from certain contagious diseases; where there are allegations of unchastity of a woman; or one which is likely to damage the claimant's reputation in relation to his office, trade, profession or business.

Mark Bateman, a media lawyer at London firm Davenport Lyons, who has advised clients on slander actions, considers the need for special damage to be 'one of the major obstacles to claimants bringing claims to trial'.

This additional burden is meant to reflect the greater durability of a defamatory statement in permanent form, which is considered more likely to damage the claimant than an intransigent comment or gesture.

However, he points out that 'these exceptions are often the very stuff that slander claims are made of'.

A second hurdle facing the claimant is that he must plead the actual words of which he complains.

Easy enough for a libel claimant who need only adduce the written publication in question, but for a slander claimant, knowing only the gist of what has been said is not generally enough.

Indeed, the defendant may deny he said the words at all.

The words used have to be set out with reasonable certainty unless there is sufficient, credible evidence to show there exists a good cause of action relating to a statement of a specified nature, on a particular occasion, and to a particular person.

The Court of Appeal clarified this in the case of Best v Charter Medical Of England Ltd & Another; [2001] EWCA Civ 1588; [2002] EMLR 18, 19 November 2001 The Times, CA, adding that the claimant was not allowed to fish for better information through discovery.

But not all hastily uttered, heated words that cause hurt and embarrassment to the subject give rise to slander claims.

A victim has no cause of action if what has been said amounts to mere 'vulgar abuse' and was not meant to be taken seriously.

In the case of Thorley v Kenny (Lord) (1812) 4 Taunt 355, it was held 'for mere general abuse spoken no action lies'.

But in the 1500s, slander and vulgar abuse alike were apparently rife.

In his book When gossips meet: women, family and neighbourhood in early modern England, Professor Bernard Capp discusses the surprisingly large number of slander claims among working class women in the 1500s.

Where quarrels broke out between close-knit groups of women who relied on each other for support and friendship, the victims often sought recourse to the law to preserve their reputation.

Cases were often heard in the ecclesiastical courts and they related frequently to allegations of chastity, propriety and other moral matters.

Synonyms of the word 'whore' were bandied around - squirt, trull, dirtyheels - combined with allegations of lack of cleanliness and promiscuity; 'go home and wash your dirty tail', for example.

One ancient example - 'I am a better woman than Mrs Dugress.

I never showed my arse in an alehouse, nor pawned my muff for drink' - seems as at home in the modern local as in the 16th century alehouse, although some of the terminology may now differ.

Professor Capp told the Gazette that changes in society, including a greater emphasis on community then than now, might explain why slander cases were more popular than they appear now.

He says: 'Centuries ago, what mattered was one's standing in the local community.

Nowadays, outside of soap operas, people today do not tend to know who their neighbours are even two or three doors down the road.'

Mr Batemen agrees: 'Whispers in the local community don't seem quite so important to people these days as publications in the mass media.'

But are we now really so entrenched in a society that recognises only what we see on television and read in the tabloids that we no longer care what is being said about us in the next office or in the local village? The recent example of Howe v Burden would suggest not, and one can easily see the parallels between modern cases and the concerns of individuals bringing and defending cases centuries ago.

Today, we live in a world full of diversions.

In the 1500s, insults were often used as street theatre, and Professor Capp tells us that women would shout loudly in the street to ensure that they got the attention of their audience; one women in his records even used a horn to summon as many people as possible before starting her 'show'.

But while today it is less likely that the slanderer will exclaim slanderous comments as if treading the boards in some Islington amateur-dramatic venue, a quiet word in the right ear can do just as much damage, especially where that wicked whisper is broadcast further.

Anthony Hudson, media and defamation counsel at Doughty Street Chambers, considers that slander claims may be fewer than libel because the victim does not get to hear about the allegations which are quietly doing damage behind his back.

'We're in completely different territory with a slander claim than we are with an allegation published in a national newspaper,' he says.

'But that doesn't mean that the damage done is not as significant to the claimant.

X may be being accused out of his earshot of being a paedophile.

If he's never made aware of these whisperings, he won't take action but that doesn't mean that they are any less damaging.'

But taking action brings its own problems, fanning the flames of a little heard allegation with the oxygen of publicity brought by a fully blown trial in the Royal Courts of Justice.

The result? A raging inferno reported by the media spreading the allegations like wildfire.

'People may say things that they'd never dream of publishing.

And if they are said to people who are important and influential for the claimant, no matter how few, they can do enormous damage.

A claimant has to weigh the value of his claim and the vindication that he seeks, against the further publicity that a claim will certainly give.'

There can be occasions in which the relatively private spoken word and the mass media overlap.

One recent high-profile slander case shows that slanderers should take care - perhaps especially if they themselves are in the public eye - if they do not want to be significantly out of pocket for a few choice words spoken out of turn.

In McManus and others v Beckham [2002] EWCA Civ 939, former Spice Girl Victoria Beckham erroneously exclaimed to a few people in a memorabilia shop that a signed photograph on sale there did not bear the authentic signature of her famous footballer husband, David.

The shop managers took offence at the implication that they were selling forged signatures.

But while Mrs Beckham's words were only spoken in front of a handful of customers and store workers, the press got hold of the story and publicised it widely.

The shop owners sued Mrs Beckham for the original slander, but also sought to claim damages in respect of the republication of the allegations in the national press, which had caused considerably more damage to the business than had the original slander.

Lord Justice Waller's leading judgment in the Court of Appeal - where the question of liability of these additional damages was being considered - said: 'If a jury were to conclude that a reasonable person in the position of the defendant should have appreciated there was a significant risk that what she said would be repeated in whole or in part in the press and that would increase the damage caused by the slander, it is not unjust that the defendant should be liable for it.'

The parties reached an amicable settlement of the slander case shortly after, but this is a salutary lesson for anyone in the public eye on whose every word the press may choose to dwell.

But slanders published to only a few people can prove to be just as costly as to many.

In 1991, Dr Alana Houston was ordered to pay 150,000 in damages to Dr Martin Smith, having made a slanderous comment in the waiting room of the surgery where they both practised.

She alleged that Dr Smith had groped both her and other female members of the staff.

The nature of the allegation and the identity of the recipients may feature in any decision on damages.

But such large awards tend to be more the expectation than the norm.

In the case of Wraith v Wraith, unreported, The Times, June 28 1994, a man brought an action against his former wife over allegations she had made that he had given her a dose of venereal disease.

The jury awarded him 69.

One can only speculate as to how they reached that sum.

Matters of sexual propriety have long been a hotbed for claims, but a claimant should be wary of the pitfalls of washing dirty laundry in public.

Oscar Wilde famously sued for slander the Marquis of Queensberry, father of Alfred Douglas - his beloved 'Bosie' - after he had announced in public that Wilde was a 'ponce and a sodomite'.

Not only did Wilde lose his claim, but as a result he was arrested, tried and convicted of sodomy which was then illegal.

He was sent to Reading prison, his health was irrevocably damaged and he died destitute three years after his release.

Another traditional area of litigation is disputes with neighbours, much as it was in the 16th century.

But taking a neighbour dispute out of the back garden and into the courtroom can also backfire.

In 1998, Graham and Barbara Rush sued their neighbour, Dagmar Coward, for slander over a boundary dispute.

They won 5,000 jointly, but were ordered to pay 4,750 to the defendant in his counter-claim for assault.

Little change was left over for their trouble.

Given the likely costs involved, perhaps claims for slander are suited to the cheaper route of mediation.

Here both parties can have their say and air their grievances, but without giving the matter the further oxygen of publicity of a high-profile and costly slander case.

I recently handled one such case for a professional claimant about whom damaging allegations of professional impropriety had been made by his former partner after the end of their relationship.

They threatened seriously to wreck the reputation he had built up over many years of hard work in his field.

It settled at mediation, with both parties able eventually to get on with the rest of their lives, without airing any dirty laundry in the public forum of the court.

It seems that we hold our reputations just as dear to us today as we did in the past.

And whether defamations are libellous or slanderous, individuals still want to protect those reputations by taking action where they are forced to do so.

Those who do not are the dead.

You cannot libel the dead.

Nor can you slander them - although that often strikes me as odd, as when you are dead, your reputation is all that you have left.

But if reputation means little to us when we have shuffled off this mortal coil, it matters more as long as we are alive.

And for as long as people are prepared to speak ill of the living, slander claims are likely to continue.

'Sticks and stones may break my bones but words will never hurt me?' Rubbish.

Amber Melville-Brown is a specialist defamation solicitor and the Gazette's media law columnist