What are the legal differences between an explicit insult, that qualifies as slander, and an implication of the same insult?

I am a German citizen, so I'd prefer answers applicable to Germany. But any other jurisdiction is fine also.

  • It would depend on what the insult was, manner in which it was carried out, and who was present. – Terry Sep 25 '15 at 12:02
  • I know that there is a fine line between freedom of speech and insults. But I can't imagine how implications are handled because of the discrepancy betweens what's said/meant. – mike Sep 25 '15 at 12:14
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    AFAIK the only "insults" that carry any legal consequences are slander, threats, and "fighting words." Are you talking about all of those, or something more particular? – feetwet Sep 25 '15 at 13:57
  • Thx for the clarification. I was refering to slanders with "insults". Are there any legal differences between a slander and an implication of it? Both have the same end, but they differ in execution. An implication must be interpreted, whether an actual slander stands for itself. – mike Sep 25 '15 at 14:06
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    @feetwet: German law punishes insults, separate from defamation. "Fighting words" is a particularly US concept. Mike: in US law, at least, and I suspect in other common-law countries, there is no prohibition against insulting someone unless ("fighting words") you are threatening or provoking violence, or unless the insult qualifies as libel or slander. – phoog Sep 26 '15 at 5:01

If I understand your question, you're asking the difference between something like this:

"You shouldn't do business with Bob; he's a child molester. Raped a whole bunch of kids. Everyone knows about it."

and this:

"You're thinking of doing business with Bob? Huh. That's your call, of course. I won't say anything against Bob. But Bill is in the same business, and I happen to know that Bill has never molested any kids."

or this:

"There are three people you could do business with. There's me. I've never molested any kids. There's Bill; he's a little expensive, but he's never molested any kids either. Then there's Bob. I don't have anything to say about Bob."

I don't know the answer under German law, but under U.S. law, it's surprisingly complicated, and varies by jurisdiction. Here is a thorough but somewhat dated article on the subject.

New York has recently established an explicit test for defamation by implication:

To survive a motion to dismiss a claim for defamation by implication where the factual statements at issue are substantially true, the plaintiff must make a rigorous showing that the language of the communication as a whole can be reasonably read both to impart a defamatory inference and to affirmatively suggest that the author intended or endorsed that inference.

Stepanov v Dow Jones & Co., 2014 NY Slip Op 03940 (App. Div. May 29, 2014). That opinion also discusses the other approaches used in other U.S. states.

Under that standard, it seems clear that my example statements would be defamatory; any juror would immediately understand both the factual implication and that it was 100% intentional. In practical terms, I doubt any court in the United States would not consider them defamatory.

In general, defamation is harder to prove in the United States than in other jurisdictions, because of the strong protections afforded to speech under the First Amendment--but I don't know enough about German law to speak to that issue.

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  • Thx for your thorough answer. Could you try to extend it to cover slander/insult between to parties, apart from defamation, or add some thoughts on it. – mike Sep 29 '15 at 22:12

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