Criminal Defamation — When It Is a Criminal Offense and Not Just a Civil Claim
Most people are familiar with defamation as a ground for a civil claim for compensation. But the Defamation Act also establishes a criminal offense — in more serious cases. The distinction between the civil and criminal spheres matters: it affects what must be proven, the proceeding, and the possible outcome. This guide explains when a defamatory publication crosses into the criminal sphere, what a private criminal complaint is, and the practical difference between the civil and criminal routes.
1. Civil Tort vs. Criminal Offense
The law distinguishes between two spheres. In the civil sphere (Section 7), publishing defamation to one person or more other than the injured party constitutes a civil tort, entitling compensation — including compensation without proof of damage. In the criminal sphere (Section 6), the requirements are stricter: the offense exists only when the publication was made with intent to harm, and to two or more persons other than the injured party. That is, the criminal requires both a stricter mental element (intent to harm) and a broader scope of publication (at least two, not one). The penalty set in the law for the offense is one year's imprisonment.
2. When a Publication Crosses Into the Criminal Sphere
Not all defamation is criminal. The criminal threshold is high and requires both elements: intent to harm — negligence or recklessness is not enough, but an actual intent to harm the injured party; and publication to two or more persons (besides the injured party). A publication made, for example, to only one person, or without intent to harm, can give rise to a civil cause of action but not a criminal offense. In practice, the prosecuting authority very rarely brings criminal charges for defamation offenses, reserving it for serious and clear-cut cases. So the criminal route is uncommon, but it exists and is relevant in appropriate cases.
3. A Private Criminal Complaint
An important feature of the defamation offense: it is among the offenses in which the law allows the injured party to file a 'private criminal complaint' — that is, to initiate the criminal proceeding themselves, even without the State (the prosecution) doing so. This means: an injured party who believes a criminal defamation offense was committed against them can, through a lawyer, conduct a private criminal proceeding against the publisher. This is a powerful tool, but complex and demanding, requiring meeting a criminal burden of proof (beyond reasonable doubt) and all the elements of the offense — including the intent to harm and publication to at least two people.
4. Civil or Criminal — Which Is Preferable
For most injured parties, the civil route is preferable and more practical: the burden of proof is lighter (balance of probabilities rather than beyond reasonable doubt), there is no need to prove intent to harm, publication to one person suffices, and the outcome — monetary compensation — directly benefits the injured party. The criminal route (via a private complaint) is relevant mainly when the harm is severe and especially deliberate, and when there is value in a criminal conviction beyond compensation. Sometimes the two can be combined. The choice between the routes is strategic and fact-dependent, and requires a professional assessment of the evidence, the elements, and the goal you seek to achieve.
Checklist
- Distinguish: civil (Section 7, publication to one, no intent) from criminal (Section 6)
- The criminal requires intent to harm and publication to at least two people
- Remember: the penalty for the criminal offense is one year's imprisonment
- Check the option of a private criminal complaint in serious cases
- Assess the stricter criminal burden of proof (beyond reasonable doubt)
- Consult for a strategic choice between the routes
Common Pitfalls
- Assuming all defamation is a criminal offense — the threshold is high
- Ignoring the intent-to-harm requirement in the criminal sphere
- Ignoring the requirement of publication to at least two (not one) in the criminal
- Choosing a private criminal complaint without preparing for the stricter burden of proof
- Ignoring that the civil route is usually more practical and beneficial
שאלות ותשובות
Can defamation be a criminal offense?
Yes. Section 6 of the Act establishes a criminal offense when the publication was made with intent to harm and to two or more persons other than the injured party. The penalty is one year's imprisonment. The threshold is higher than the civil sphere.
What is the difference between civil and criminal defamation?
The civil requires publication to at least one person (other than the injured), with no intent. The criminal is stricter: it requires intent to harm and publication to at least two people, and proof beyond reasonable doubt.
What is a private criminal complaint?
A tool that allows the injured party to initiate a criminal proceeding against the publisher themselves, even without the prosecution. It is powerful but demanding — it requires meeting a criminal burden of proof and all the elements of the offense.
Is the civil or criminal route preferable?
Usually the civil is more practical — a lighter burden of proof, no need for intent to harm, publication to one suffices, and the outcome is compensation for the injured party. The criminal is relevant for severe, especially deliberate harm.