common-law germany defamation civil-law slander
Implied insults
<p>What are the legal differences between an explicit insult, that qualifies as slander, and an implication of the same insult?</p>

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

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

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

<p>and this:</p>

<blockquote>
  <p>"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."</p>
</blockquote>

<p>or this:</p>

<blockquote>
  <p>"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."</p>
</blockquote>

<p>I don't know the answer under German law, but under U.S. law, it's surprisingly complicated, and varies by jurisdiction. <a href="http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2870&amp;context=flr" rel="nofollow">Here</a> is a thorough but somewhat dated article on the subject.</p>

<p>New York has recently established an explicit test for defamation by implication:</p>

<blockquote>
  <p>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.</p>
</blockquote>

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

<p>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.</p>

<p>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.</p>
