Defamation under English and Uzbek law
“The roots of tort law lie in human suffering,
maimed bodies, shattered spirits, and extinguished lives.”
– Peter A. Bell and Jeffrey O’Connell
Spreading Evil Report
The tort of defamation, as alleged by Michael Jones in his ‘Textbook on Torts’ that is widely included into the list of law school primary readings, ‘protects a person from untrue imputations which harm his reputation with others.’ The act of defamation, presumably, in the usual course of events is widely treated as a civil wrong (since it occurs between individuals and/or entities) and the protection of one’s reputation is primarily or exclusively regarded to be in private interest. The roots of the word defamation can be traced back to the Old French diffamer, which in turn is derived from Latin diffamare (meaning spread evil report). Simple arithmetic calculation (requirements — defences = liability), broadly speaking, need to be performed in order to establish liability in defamation; the methods and elements of calculation, however, differ along with the peculiarities in English and Uzbek law.
Cloudless Sky of English Defamation
Defamation, in a British sense of the word, is an internationally exceptional division of civil law with its plain and in some way eccentric methods and cases. It is a peculiar part of tort law that is still dealt only through the High Court juries without provision of legal aid. Those who cannot afford to fund defamation action, however, may choose to sue for malicious falsehood, for which legal aid available with the proof of malice and consequent damage. Of course one will not be considering the latter as an option even if liability can be proved without a lawyer, simply because the pecuniary remedies in the former go far beyond the ‘clear sky of English defamation’.
The origins of the word alone suggest two of the three core requirements for establishing liability in English defamation: the words are defamatory (evil report) and published to a third party (spread). The words can be characterised as being directly defamatory or carrying such meaning if they ‘tend to lower the claimant in the estimation of right thinking members of society generally’, for instance in Sim v Stretch  2 All ER 1237, or provided that they ’cause the claimant to be shunned and avoided’ (Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd  50 TLR 581, 587). The words are to be taken in their natural or direct meaning unless innuendo, which in turn is divided into popular or false (Lewis v Daily Telegraph Ltd  AC 234, 258) and legal or true (Tolley v J.S Fry & Sons Ltd  AC 333), is pleaded (Charleston v News Group Newspapers  2 All ER 313). However, the defamatory argument itself cannot embark onto the “journey” of defamation proceedings; the “journey” begins when there is at least a third person on the ship (meaning that the defamation can be applicable only when the defamatory statement is published to a third party). The third element, not less notably, asserts the reference of the words to a claimant and appears to be the logical base for Michael Jones’s assertion that the tort of defamation is applicable ‘during the lifetime of a person and does not survive for the benefit of a deceased member of family.’ There would be no difficulty while proving an explicit reference to the claimant, though entirely another level of concern when the defamatory statement is referred indirectly (Morgan v Odhams Press Ltd  1 WLR 1239, in which the extent of knowledge of an ordinary sensible man of the circumstances was argued). Additionally, the reference as a result of a mistaken identity brings out another issue that ‘it is not even necessary to know even about the existence of the claimant’ (Hulton v Jones  AC 20).
The English defamation takes two forms: libel, which is a defamatory material in permanent form; and slander, in which the statement is of transitory form. The former is always actionable per se (i.e. applied without proving damages), while in case of the latter evidence of damages has to be provided with exception of four circumstances. The proof of damage in case of slander, consequently, is considered to be the fourth requirement for establishing liability. There is, however, no need to prove damage in case of a) an imputation of a criminal offence punishable through imprisonment; b) an imputation of an existing contagious disease; c) an imputation of the lack of chastity or adultery to a woman or girl; d) an imputation of the claimant’s lack of competence or fitness in his course of business.
The peculiar precision and organisation within the tort of defamation in English law makes it comprehendible and easy-to-follow for general public (and even comparative law students) and clears out the ambiguity among requirements for establishing liability.
Not so Civil Law
The approach which Uzbek jurists employ for dealing in defamation (or its Uzbek equivalent) cases may appear as absurd to their common law counterparts. The reason is merely because a large proportion of it covered by Criminal Code and imprisonment still functions as one of the remedies. The Civil Code, in turn, only ascertains the rights of citizens ‘to demand through a court the refutation of information defaming his honour, dignity, or business reputation’. The concept of defamation, at first sight, seems to be absent even as a technical term. Adding the ambiguous definition within the Civil Code and entire absence of the legal notion of the word, British lawyers might obviously come to the same conclusion.
The English concept of defamation, however, exists within different legal documents: in the Civil Code as ‘defense of honour, dignity, and business reputation and in the Criminal Code as ‘tukhmat’ widely translated as ‘denigration’ (strange enough to note a politically incorrect word). Malicious falsehood, in contrast to English tort of defamation, is not generally divided from denigration and judges do not focus on their distinction. The Article 139 of Criminal Code, at some level, divides denigration into permanent (libel, though no special term used for that) and transient (slander) form, drawing the line between the two only with the difference in remedies. This article, however, is brought to action only if the denigration is committed after a previous administrative penalty for the same action, which in fact is a civil liability.
The ‘spread evil report’ rule (if it can be put this way) is entirely applicable to Uzbek law of denigration. The section 11 of The Plenum Resolution of the Supreme Court of the Republic of Uzbekistan On the exercise of legislation on Defence of honour, dignity and business reputation of citizens and entities indeed affirms the following requirements that need to be clarified during the court proceedings: a) if the statement, refutation of which is required, is disseminated (published to a third party); b) if the statement defames the honour, dignity, and business reputation of the citizen or entity (carries defamatory character); and c) if the statement corresponds to reality (if it is true). A careful reader might notice that the ‘spread evil report’ rule, which was earlier suggested as a test for comparison, corresponds to the similarities in defamation laws of the two jurisdictions, whilst the third elements (reference to the claimant and correspondence to reality) define their mere distinction. The third and presumably one of the most important requirements in common law is not listed as such in Uzbek one, simply because there is no need to prove whether the statement referred to the claimant. According to Paragraph 2 Article 100 of Civil Code, interestingly, an interested party has a right to sue in defence of his deceased member of family. The claim of Peter Bell and Jeffrey O’Connel stated as an epigraph that the roots of English tort lie in ‘shattered spirits and extinguished lives’ is now effectively proved to be accurate in Uzbek law. Moreover under Article 46 of Civil Procedural Code, official representatives (parents, guardians or foster parents) or prosecutor may take a legal action in defence of under-aged or incapable (in accordance with law) individuals. It is also worth noting that the requirement whether the given statement corresponds to reality in both countries is recognised as a full defence and the onus of proving it falls to the defendant.
Despite the wide recognition of defamation as a civil wrong, Uzbek denigration mostly can bring a criminal liability (as does the English one, but in rare cases), requirements and methods for establishment of which may differ vastly from the former. Hence, the civil law of defamation, metaphorically speaking, turns out to be not so civil.
Helping the Needy or Greedy?
The disparities between civil and common law legal systems appear to prevail and be highlighted even in defamation area. In English case, the wide use of precedents shaped the requirements in the way that there is no need for the statutory developments. In Uzbek law, in contrast, the civil and criminal codes that are to, theoretically, include every little part in organised system prevail ambiguity and puzzles that are complicated even for experienced lawyers. Even though the purpose of the paper was not to discuss the remedies for defamation, in conclusion it would be worth to note that apart from the differences in elements for establishing liability the major discrepancies come after the court’s decision. The purposes of establishing liability is clear when looked at the Article 100 the Civil Code of the Republic Uzbekistan, repeatedly demanding the refutation of the defamatory material, and the huge damages granted to the people whose names frequently appear in the English cases.
*Any references are coincidental and the author does not carry liability for any of the metaphors in defamatory character
Bell P and O’Connell J, Accidental Justice (Yale University Press 1997)
Butler W, Civil Code of The Republic Uzbekistan (translation, Simmonds & Hill Publishing LTD 1999)
Jones M, Textbook on Torts (Blackstone Press Limited 1993)
Murphy J, Street on Torts (11th edn, Lexis Nexis UK 2003)
Oughton D and Harvey B, Law of Torts (Oxford University Press 2011)
Rustamboev M, O’zbekiston Respublikasi Jinoyat Kodeksiga Sharkhlar: Makhsus Qism’ (Ilm Ziyo 2006)