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This is inspired by this thread on Writing.SE.

Under US law, a true statement can never be defamatory, and neither can a statement of opinion, as opposed to a factual statement.

  1. Are there any countries where a statement proven true can still be valid grounds for a defamation or libel judgement?

  2. Are there any countries where a statement of opinion can be valid grounds for a defamation or libel judgement?

  3. Are either of these a matter of the common-law system vs the civil-law system?

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    I don't know of anywhere that this is currently the case, but common law previously permitted defamation claims based on true statements. As I recall, the prevailing theories were upside-down from what we think of in America. Libel against the government was worse than libel against individuals, and it was even worse still if it was true. My understanding is that the defamation torts were meant to provide an alternative to the dueling nonsense that used to routinely ensue such statements.
    – bdb484
    Nov 19, 2021 at 18:42
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    According to this answer Germany criminalizes insults and disparagement of the dead without regard to the veracity of the statements made, the linked source seems to corroborate it since it doesn't specify that the statement has to be untrue but someone else on the site might be able to answer with more specific German citations. Nov 19, 2021 at 23:49
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    Defamatory statements about Kim Jung Un can not be proven true in a North Korean court of law and are always valid grounds for a death sentence or hard labor. The same for statements of opinion about how the government sucks. Both are handled by the kangaroo-law system.
    – emory
    Nov 20, 2021 at 2:48
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    @emory, are you sure it's defamation, and not some specific crime such as "insulting the Supreme Leader"?
    – Mark
    Nov 20, 2021 at 4:10
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    Germany also makes it illegal (don't know to which degree) to disparage a current or former foreign head of state, unless they were convicted.
    – gnasher729
    Nov 22, 2021 at 15:18

3 Answers 3

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One example is Sweden. Ebba Busch, the leader of the Christian Democrat party, accepted an order of summary punishment for writing in a Facebook post that the lawyer of her opponent in a real estate dispute has a criminal conviction, which is true. She said, "I admit having committed a crime, that I in my soul and heart consider myself innocent of. [...] But in Sweden, even the truth can be libel."

A professor of civil law commented: "I'm a bit worried that there could be a campaign for true statements on social media always to be permitted, it would amount to terrible consequences and a negative development. In Sweden, libel law has been used to counteract spreading of revenge porn and sex videos of young women. Truth is not unimportant, it is taken into account in the libel process. It would be a negative development if it became allowed to spread everything that is true, in that case you'd need a more precise proposal about how you would permit certain actions and not others."

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In France, a defamation suit based on a true statement can easily be successful on procedural grounds. In particular, proof for the allegations should be submitted to the plaintiff within 10 days. Until recently, other restrictions existed (e.g. it wasn't possible to invoke the “truth exception” for events older than 10 years).

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The criminal libel statute in Colorado as of 1989 reflected two of the categories of libel that were historically illegal at common law, even when the statements were true, although these claims are no longer actionable in defamation claims in U.S. law (as a result of Garrison v. Louisiana, 379 US 64 (1964)). The Colorado statute was as follows:

On April 13, 1989, the defendant was charged with criminal libel in violation of section 18-13-105, 8B C.R.S. (1986). That section provides:

(1) A person who shall knowingly publish or disseminate, either by written instrument, sign, pictures, or the like, any statement or object tending to blacken the memory of one who is dead, or to impeach the honesty, integrity, virtue, or reputation or expose the natural defects of one who is alive, and thereby to expose him to public hatred, contempt, or ridicule, commits criminal libel.

(2) It shall be an affirmative defense that the publication was true, except libels tending to blacken the memory of the dead and libels tending to expose the natural defects of the living.

(3) Criminal libel is a class 5 felony.

People v. Ryan (Colo. App. 1991) reinstating criminal libel charges not based on a truthful statement (subsequently repealed legislatively). I suspect, but do not know, that the common law rule restated in this statute remains the law in some common law countries.

Monarchies also often criminalize or make actionable, negative statements about the monarch whether or not they are true.

Here is a brief summary of the common law history:

Modern criminal libel law can be traced back to the 16th century English Star Chamber, which heard state security cases behind closed doors. The Star Chamber controlled defamatory statements about the monarchy by making it a crime to utter or print them. Under these sedition laws, a truthful statement that defamed the government was considered worse than a blatantly false one because it was even more likely to erode people’s confidence in government.

In early American history, where government was liberally criticized despite English sedition laws, free speech was codified in the Bill of Rights.

Not that the First Amendment hasn’t been tested. In 1798 Congress passed the Sedition Act, punishing writings or statements against the government, in response to aggressive criticism of government officials by journalists including Benjamin Franklin Bache, grandson of the famed publisher and inventor. The government arrested and jailed Bache under the Act.

The Sedition Act expired in 1801.

In the early 1800s, however, many states enacted criminal libel laws to dissuade people from avenging slights to their reputation with guns and duels, Brougham, the lawyer in the Mink case, said. Those deadly shootouts were referenced in the Supreme Court’s Garrison decision, quoting one 19th century advocate of Louisiana’s criminal libel law: “Defamation, either real or supposed, is the cause of most of those combats which no laws have yet been able to suppress.”

By the mid-1950s, many states had adopted truth alone as a defense to criminal libel.

The Garrison opinion in 1964 noted the changing mores of modern times and questioned how such criminal libel statutes fit in a culture dedicated to preserving the First Amendment. The Court quoted the Model Penal Code of the American Law Institute, a guide to criminal sanctions across the country, that “penal sanctions cannot be justified merely by the fact that defamation is evil or damaging to a person in ways that entitle him to maintain a civil suit.”

Authorities from the American Law Institute recommend states implement only “narrowly drawn statutes, designed to reach words tending to cause a breach of the peace” or “designed to reach speech especially likely to lead to public disorders,” Brennan wrote in Garrison.

It isn't even entirely certain that truth is always a defense in criminal libel cases, although this is the majority view (from the same source):

While truth is an absolute defense in civil libel lawsuits, in some states the veracity of a statement may not offer much of a shield against criminal libel charges.

For example, Colorado’s statute says the truth is a defense to the crime except with “libels tending to blacken the memory of the dead and libels tending to expose the natural defects of the living.” Because this statute is still around, it could result in arguably unlawful prosecution against truthful statements, although such a claim would be dismissed by most courts. . . .

Wisconsin’s defamation statute, punishable by a fine of up to $10,000 and nine months in prison, applies to defamatory statements disseminated to a third person without consent. Defamatory matter includes anything that exposes someone to ridicule, even if the statement is true.

The way that one gets there is different in common law countries, where the relevant rules arose out of a shared body of case law, and in civil law countries, where defamation's history is shared less with fraud (as it is in U.S. law) and more with harassment, incivility, and disturbing the peace as in the cases of Sweden mentioned in another answer and in Germany, where criminal libel cases are commonplace (but civil defamation lawsuits are rare).

The U.K. reformed its defamation laws in 2013 and truth is currently an absolute defense to defamation claims there. It appears that this is also the case in Australia (which has also abolished criminal libel) and in New Zealand.

Canada (outside Quebec) is somewhat less protective of free speech with, and as of 2006, one commentator stated that:

For all the lofty quotes about free speech in Canadian jurisprudence, the reality is that our libel laws are the least protective of free speech in the English-speaking world.

As the link above explains:

At common law, defamation covers any communication that tends to lower the esteem of the subject in the minds of ordinary members of the public. The perspective measuring the esteem is highly contextual, and depends on the view of the potential audience of the communication and their degree of background knowledge. Probably true statements are not excluded, nor are political opinions unless explicitly stated as such.

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  • What if I say something intentionally that is literally the truth, but by leaving out facts anyone hearing it gets a completely wrong impression? In other words, true but intentionally misleading?
    – gnasher729
    Nov 23, 2021 at 13:36
  • @gnasher729 I think that this falls under the question of fact of what was said semantically, and not really under the truth is a defense theory.
    – ohwilleke
    Nov 23, 2021 at 20:54

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