Restitution for Defamation

Restitution for Defamation.—Restitution for injuries committed is necessary (see 1759), and hence it is required of the defamer. In the language of Scripture (Prov., xiii. 13), he that speaks ill of his neighbor obliges himself for the future. The two injuries to be repaired are: (a) the unjust taking, that is, the fame of which he has deprived his neighbor; (b) the unjust damage, that is, the detriment to fame or the losses that resulted from the defamation (such as failure to obtain or keep a position, decline of business, etc., which were foreseen at least in a confused manner). It is clear there is no duty of restitution, if in spite of talk against a neighbor he suffered no loss (e.g., if the listeners gave no heed or credence to the talk).

Gravity of Obligation of Restitution.—The obligation of restitution for defamation is grave or light according to the degree of injury done, and the grave obligation binds even at the expense of serious inconvenience, the light obligation at the cost of small inconvenience. But the following points should be noted:

(a) the injury is not necessarily grave if the defect imputed to another is grave, for many circumstances have to be considered (e.g., blasphemy is a serious charge, but it would not be very harmful to a man publicly known as very impious, see 2053 sqq.);

(b) the injury is not necessarily slight if the defect imputed is slight, for circumstances may make the injury considerable (e.g., it is not very defamatory to say that a woman is very talkative, or unable to speak or spell correctly, but this would be very damaging if it lost the woman a very lucrative position as secretary).

Conditions Which Entail Duty of Restitution.—Restitution is not obligatory unless one is the unjust and efficacious author of the damage (see 1763). Hence, disclosures unfavorable to the reputation of others entail the duty of restitution only when the following conditions are present:

(a) the detriment to fame or other loss must be unjust objectively, and hence those who have a just reason for exposing the vices of others are not held to restitution;

(b) the detriment must be unjust subjectively, and hence one who in good faith speaks of a neighbors sin, thinking that it is true and public, whereas it is false or secret, is not bound to restitution, if he discovers his error after the results of the defamation have been removed (see, however, 2102). But if he discovers his mistake while the neighbor is still under a cloud because of the report, he becomes from that moment responsible and subjectively unjust, if he does not take steps as far as he conveniently can to correct the error (see 1769);

(c) the detriment must be due to oue’s act as to its efficacious cause, and hence one is not bound to restitution if a listener understands one to disparage when in fact one has not disparaged.

Cooperators and Restitution.—Those who cooperate in injustice are also held to restitution (see 1778 sqq.), and hence the following are bound to indemnify a defamed person:

(a) positive cooperators are held to restitution, such as those who command, counsel, or encourage defamation. The same is true of those who share in a defamatory conversation or who merely listen, but by their questions, or show of interest or approval, induce the defamer to continue, or to speak with more assurance;

(b) negative cooperators are also held to restitution, if they were bound in justice to resist or impede defamation. This will apply chiefly to a superior who does not prevent, as he should, the defamation of his subject or community, whether by a subject or a non-subject (see 2080 sqq.).

Circumstances of Restitution.—We shall now speak of the circumstances of restitution for defamation: (a) the persons bound to restitution besides the defamer, namely, his heirs, the listeners, etc.; (b) the persons to whom restitution is to be made; (c) the manner of making restitution; (d) the time for making restitution (see 1781 sqq.).

Restitution for Defamation to Be Made by an Heir of the Defamer.—(a) For the injury to fame, it seems that the heir is not bound, since the duty of restitution of fame is a personal one, that is, an obligation to perform an act of retraction or apology, not an obligation to pay compensation (see 463). But some hold that defamation may be satisfied for by pecuniary compensation (1750, 1802), and that, if the injured party should insist on this kind of compensation for the infamy suffered, the heirs would be obliged to pay it.

(b) For the damages resulting from injury to fame the heir is bound, since restitution for losses is a real one and rests upon the property or estate of the deceased. But those who are in good faith are sometimes to be left undisturbed, lest they become guilty of formal sin.

The Persons to Whom Restitution for Defamation Is to Be Made.—(a) To the person defamed restitution of fame is owed, and this is true even when the person is already dead. Just as one who dishonors the dead by desecrating their tombs or their remains owes it to their memory to make reparation, so one who defames the dead owes it to their reputation to make restitution. In fact, the heirs may be bound in conscience to insist upon this restitution, and it seems they cannot condone it, since it is not their own fame that has been hurt.

(b) To the listeners restitution is not owed, since no injustice was done them, but reparation for scandal given them may be obligatory. And, since justice to the person defamed requires retraction or other reparation, the defamer must recall his words before the persons to whom he addressed them. Hence, if defamation appeared in a journal, the honorable reparation should also appear in the same journal and with the same prominence given it as was given the offensive remarks.

Responsibility of Defamer for Spread of Defamation.—Is the defamer bound to recall his words to the wider audience that learned them from his first listeners?

(a) If the defamer is not responsible for the spread of his talk beyond the circle which he addressed (e.g., if he imposed strict silence upon his listeners or had good reason to think that they would keep his remarks to themselves, and his words nevertheless leaked out), the common opinion is that he is not held to reparation before the subsequent listeners.

(b) If the defamer is responsible for the spread of his talk (e.g., if he gave his listeners permission to quote or repeat, or if he knew well that they would carry his words far and wide), he is bound to reparation before the later listeners, in so far as this is possible, especially if he was guilty of calumny. Whether he or his listeners have the first duty of restitution will depend on the relationship in their cooperation (see 1784). If he can do nothing better, he should admonish his listeners to retract before their listeners.

The First Way of Making Restitution for Defamation.—(a) If the defamation was by calumny, the defamer (and also the propagator) must take back his words, admitting that what he said was untrue. If necessary, he should also make affidavit to this effect, or even admit that he lied. The reason is that the innocent party has a greater right to his fame than the guilty party. But the defamer is not obliged to confess his own malice, when this is not necessary, and it may suffice to say merely that his former statement was not correct.

(b) If the defamation was by detraction, the defamer cannot truthfully say that his words were false, and he must counteract directly or indirectly the effect of his defamation by something favorable to the person he has injured. If the listeners will not be confirmed in their belief by his explanation, the defamer should explain to them that his statements were unjust, that he had no right to make them, that he wishes them to regard as unsaid all that he said, etc. (direct revocation). If this cure would be worse than the sickness by strengthening the belief of the listeners that the defamation was true, the defamer should be silent about his former statements. But he should so honor or praise the person defamed that others will be led to believe, not that restitution is being made, but that the former good opinion they had of the person defamed was correct (indirect revocation). Thus, if the defamer knows that the injured person has reformed, he may call attention to and emphasize the virtues he now has; if the defamed person has still the same failing, he may be excused, when possible, or praised for the good qualities he does possess, or he may be spoken of in general terms of esteem; if the listeners have been led to dishonor the person who was detracted, the defamer may show special signs of esteem or confidence to the latter, etc.

Other Methods of Making Restitution.—If the listeners will not be impressed by any of the methods of satisfaction just indicated, what should be done?

(a) If, in the case of calumny, the listeners are unwilling to accept the formal statement that the defamation was untrue, the defamer is obliged to nothing more. For the slanderer has done all that is possible to change the erroneous view of the listeners, and the bad opinion they have of their neighbor must now be attributed, not to the defamer, but to their own wickedness or stubbornness.

(b) If the listeners cannot be properly impressed by the direct or indirect revocation of detraction, the defamer, being unable to make honorable compensation by restoration of fame, should make a profitable compensation by the bestowal of a benefit that will in some way be commensurate with the good of reputation and be acceptable to the other party. Thus, if the person defamed is satisfied with money or something measurable in terms of money, he should be given damages; if this kind of compensation is of little use or is not esteemed (few persons of honor would take money alone as pay for a lost reputation), he should be given some other good which in his own judgment and that of a prudent man is more nearly an equivalent for the good of which he has been deprived. An apology is not sufficient, since the begging of pardon does not restore what was taken; neither is it generally advisable, because the admission to another that one has been secretly defaming him and is now sorry for this may lead to quarrels and hatreds rather than to forgiveness and peace.

Legal Reparation for Defamation.—One who has been sentenced by a lawful judgment of court to reparation and penalty for defamation is obliged to obedience, but if the satisfaction decided on by a jury is excessive or meager, it can be set aside by the court. In Canon Law (Canon 2355) one who has been convicted of defamation may be sentenced: (a) to satisfaction; (b) to damages; (c) to suitable penalties, even to suspension or removal from office or benefice.

The Time When Restitution for Defamation Is to Be Made.—(a) It should be made as soon as possible, for the longer it is delayed the greater the injury that is suffered, since defamation becomes harder to correct as it progresses, or at least has a longer life when it is not corrected early. But prudence will sometimes dictate that one await a psychological or favorable moment for a retractation. (b) Restitution should be promised before absolution is given, and, if there is a well-founded doubt about the sincerity of a promise, the confessor may delay absolution until restitution has been made.

Cessation of Duty of Restitution.—The duty of restitution ceases, at least temporarily, in certain cases (see 1797 sqq.), and hence one who has been guilty of injustice through defamation is sometimes excused from reparation. (a) Thus, one is excused temporarily on account of impossibility; (b) one is excused permanently on account of the cessation of the other party’s good name or the termination of one’s own obligation.

Excuse from Restitution on Account of Impossibility.—(a) Physical impossibility excuses, for example, when one does not know who the persons were before whom one detracted, or cannot recall who the person was whom one defamed. But in this case the defamer should at least make satisfaction by praying for the person whom he defamed, or by having Masses offered for him.

(b) Moral impossibility excuses from restitution, as when the defamer will suffer a far greater loss than he inflicted on the person defamed (e.g., if the defamer cannot retract without losing his life, or a reputation which is far more valuable than that of the obscure person who was defamed). But if the defamer has subjected the injured party to the peril of death, or if he has calumniated an innocent man, he must make satisfaction even at the peril of his own life or at the cost of his own fame; for the right of the innocent prevails over that of the guilty defamer.

Excuse from Restitution on Account of Cessation of Other Party’s Good Name.—The defamer may also be excused from restitution on account of cessation of the other party’s good name through another cause, as when the secret defect first made known by the defamer becomes public from another source.

(a) The detractor is excused from the duty of restoring reputation, since the person he defamed has now independently of the first defamation lost his right to reputation (see 2053 sqq.).

(b) The detractor is not excused, however, from payment for damages which the defamed person suffered from the first defamation or for expenses which it caused him. Some moralists hold him obligated also for some compensation for the infamy suffered before the crime became public through others.

Excuse from Restitution on Account of the Termination of Obligation.—(a) The act of the defamed person ends the obligation, when, without injury to others, he expressly or tacitly condones the offense; for he has dominion over his own fame, as he has over his own money or lands. Thus, it may often be presumed that parents overlook the restitution owed them by their children for criticisms made by the latter.

(b) The act of the defamed person also ends the obligation, according to the common opinion, when he has inflicted an equal injury by defaming his defamer and is unwilling to make satisfaction for the injury; for though it is unlawful to repay evil with evil, and though one damage does not cure another damage, he who will not pay a creditor cannot insist that the creditor pay him an equal debt. Thus, if Titus has burned the barn of Claudius and Claudius then burns the barn of Titus, and neither will pay damages, the debts neutralize each other, if the losses are equal. The same principle applies in defamatory recriminations.

Right of Defamed Person to Condone Injury.—The person defamed has the right to condone the injury, if it is only personal to himself, but he has not always the right to condone the injury when the defamation causes harm to others.

(a) Thus, the defamed person would sin against justice and his act would be invalid, if he forgave the debt of restitution despite the fact that his own fame was necessary for the fame of others (e.g., when a monk loses his good name, the monastery is also disgraced), or was necessary for the fulfillment of duties owed by him in justice to others (e.g., when a prelate, priest or public official loses his good name, the good influence he should exercise over his subjects is ended). This conclusion is probable.

(b) The defamed person would sin against charity, but his act would be valid, if he forgave the debt of restitution despite the fact that his fame was necessary for the fulfillment of charitable duties owed to others, or that his silence in the face of defamation would cause great scandal (e.g., when a preacher loses his reputation, his words do not move, and thus he is unable fruitfully to accomplish works of charity by instructing the ignorant, etc.).

Excuse from Restitution When Reputation Has Been Recovered.—The obligation of restitution for defamation also ceases when reputation has been recovered without any act on the part of the defamer; for it is clear that one is not bound to give back that which is already had. But restitution may be due, nevertheless, for damages incurred, and some think that compensation (e.g., apology, honor, praise) should be made for the injury of infamy that existed before the good name was regained.

The usual ways in which reputation is recovered without the act of the defamer are: (a) by overthrow of the defamation, as when the facts against it become manifest, or when witnesses prove its falsity, or when a tribunal declares it a criminal libel; (b) by oblivion, as when a misdeed of years ago has faded entirely out of the public memory. If the defamer is uncertain whether his past defamations have been forgotten, he has to act with great prudence; for, if he makes inquiries the memory of the defamations may be awakened, while if he says nothing, the defamations, because never corrected or retracted, may break out anew. He should consider the circumstances, therefore, and treat the defamed person as he would wish himself to be treated in a like case.