Does Defamation Law Hinder the Media’s Role as A Public Watchdog or Not?

Does Defamation Law Hinder the Media’s Role as A Public Watchdog or Not?

[AUTHOR’S NAME]

[DATE eg December 2014]

A DISSERTATION

Submitted to the Law Department

Supervised by

[Name]

 

 

 

 

 

Research Plan/Literature Review

Background to the Study

In England, defamation cases are not only notoriously complicated but also very restrictive.[1] Defamation laws in England trace their origin to the judges on the Queen’s Bench. Keen to see gentlemen defending their reputations without recourse to violence, they came up with libel laws as alternatives.[2] As such, defamation is a kind of civil law.[3] Though very old, defamation laws are riddled with problems. The main problem is lack of development.[4] Development of laws is mainly achieved through legislation and common law. While the former is dependent on political goodwill, the latter depends on precedent set by courts (common law).[5]

The problem that has faced defamation law in England is that there have been very few cases that have actually made it to the trial stage for different reasons. These reasons include the extremely high costs of such defamation cases as well as their complicated and unpredictable nature. Furthermore, only three judges can hear such cases both in England and Wales. As such, there are very few opportunities available for the relevant common law to develop.[6]

As though that was not enough, only a very small number of rulings have actually had disproportionately large influences on the shape of the law. In essence, it has been extremely hard for court rulings to influence the course of the law on defamation. This state of affairs has increased the problem of existence of outdated defamation laws.[7]

The Research Problem

English defamation law is one of the oldest in the world. Therefore, it has been quite of being retrogressive and favouring claimants over defendants.[8] This has led to an increase in liberal tourism.[9] Furthermore, requiring the defendant (not the claimant) to prove the alleged defamation makes the law quite favourable to claimants.[10]Therefore, English defamation law has been regarded as a major impediment to free speech throughout the West.

The Defamation Act of 2013 was in fact enacted to specifically address these impediments.[11]            Unfortunately, the new law has only managed to address some of the controversial clauses of the law such as the one mentioned above (putting the burden of proof of defamatory remarks on the defendant rather than the plaintiff). This has left several other issues still unaddressed. A notable expectation of the new law was that it would essentially bring together into one unified law all issues pertaining to defamation whether it is slander or libel. However, it has left some fundamental issues found in the old English defamation law in place.[12]

As such, several weaknesses of the English defamation law still exist. Furthermore, the new law only applies to defamation cases that have happened after its enactment. All cases of defamation that happened before the enactment data of the Defamation Act of 2013 will still use the English defamation law.[13] The problem of this research, therefore, is that many weaknesses still remain in English law pertaining to defamation.

Among the notable weaknesses is that in protecting the reputations, this law makes it extremely hard for rights to free speech of the kind given to a free press to be effectively exercised because of the risk of being sued for defamation.[14] In essence, even with the new Defamation Act, freedom of expression is still threatened by the risk of committing libel. This is unlike the situation in countries like the US where there are very clear provisions for the expression of free speech by the free press without necessarily committing libel.[15]

Rationale for the Study

This study is particularly important and therefore worth carrying out because of the following reasons:

  1. It helps bring about an understanding of the extent to which English defamation law – while protecting reputations – interferes with or undermines free speech especially by the free press.
  2. It uncovers the extent to which the media’s role as a public watchdog has been hindered by English defamation law.

Aim and Objectives of the Study

AIM: To determine whether or not English defamation law hinders the media’s role as a public watchdog.

Objectives:

  1. To determine the strengths and weaknesses of the Defamation Act of 2013 with respect to protection of reputations.
  2. To point out the hindrances to free speech that still exist in English defamation law even after the enactment of the Defamation Act of 2013.
  3. To critically analyse defamation laws in England and the US with a view to determining the suitability of each one of them when it comes to guarding against defamation while at the same time ensuring that the media’s rights as a public watchdog are not violated.
  4. To make recommendations for improving English defamation law to make it less of a hindrance to the media in its role as the public watchdog.

Research Questions

  1. What are the strengths and weaknesses of the Defamation Act of 2013 with respect to protection of reputations?
  2. Which hindrances to free speech still exist in English defamation law?
  3. In which ways is defamation law in the US better than defamation law in England in terms of guarding against defamation while at the same time ensuring that the media’s rights as a public watchdog are not violated?
  4. Which amendments are necessary to modernize English defamation law to minimize or eliminate its hindrances to the media in its role as the public watchdog?

Null Hypothesis

English law of defamation – while very effective in protecting reputations – hinders the media in its role as the public watchdog.

This hypothesis is tested by examining the strengths and weaknesses of English defamation law especially as it affects free speech.

Methodology

The study uses desk (secondary) research to collect data. Data collected from journal articles and books. Content/thematic analysis is used to derive information from the data.

Structure of the Dissertation

  • Research Plan/Literature Review
  • Introduction
  • Chapter One: Analysis of Defamation law in England
  • Chapter Two: Reynolds’s Public Defence as Affirmed in Jameel v Wall Street Europe
  • Chapter Three: A Critical Analysis of the Defamation law in the US
  • Chapter Four: A Critical Analysis of the Effectiveness of Defamation Law in England
  • Conclusion
  • Reflective Summary

 

 

Literature Review

Both Gurney[16] and Wilmshurst[17] argue that defamation cases are very costly compared to most other cases. They add that although different countries and legal systems cap the damages awarded in defamation cases at different levels, these caps do not help lower the costs. This is especially so given that the loser in the case has to pay all the costs incurred together with damages.

Agreeing with Gurney as well as Wilmshurst, Friend[18] notes that the high costs of defamation cases pose a great risk to not just individuals but also organizations. The greatest risk is that of bankruptcy especially if they take on defamation cases and lose. The ultimate result is that few cases of defamation will actually come before court because parties involved would rather settle their differences outside the court. This in turn means that it is difficult for common law concerning defamation to develop.

I agree with the arguments of all three scholars that high costs of defamation cases have become an impediment to justice. This is because plaintiffs and the defendants are at a risk of being bankrupted if they engage in defamation cases. Up until the time the ruling is made, both parties to the case are never sure what could happen; and they are concerned about the costs. As such, many individuals and organizations would rather settle their differences outside of court instead of risking getting bankrupted by defamation cases.[19]

According to Bates, whatever remnants of defamation law which are now in place cannot guarantee individuals and organizations of sufficient protection from defamers. The media is especially blamed for going too far to defame as a result of having far more and better protection from the constitution to be able to be challenged successfully.[20]

Disagreeing with Bates, McLean argues that libel and slander laws have generally been restrictive.[21] For her, free speech is a fundamental human right unlike protection of reputations which is basically a matter of personal preference. Supporting Bates, Wilmshurst notes that UK is notorious for having very restrictive defamation laws that are largely friendly to the claimants while the US’s free speech laws are so restrictive that it almost impossible for anyone to successfully bring defamation charges against anyone – least of al the media.[22]

Those opposed to the excessive protection granted to the media in the US argue that after many years of undergoing reform, American defamation law in general and libel law in particular has become so diluted that it cannot protect people and organizations from libel. They believe that actual malice rule – based on the case between New York Times and Sullivan – fails to offer the press sufficient protection.[23] Reynolds agrees, adding that a result of this courts have gone out of their way to impose several other constitutional limitations on actions of libel. According to him, has in turn made it quite hard – almost impossible – for anyone suing for defamation to get the reward.[24]

I agree that there have been disagreement over how to balance between the need for free speech and protection from defamation.[25] The media is supposed to report unhindered; but this predisposes it to committing defamation.[26] Therefore, I believe it is right to have sufficient protections for the media against libel.

Other than the media, it is argued that libel law could be affecting the entire public especially in terms of their confidence in the legal system.[27] As a result of long, difficult, complex, and costly litigation processes which offer neither the claimants nor the defendants an assurance of victory, many are left wondering whether or not the law actually favours truth over falsehood.[28]

Most defamation claims made in both the US and the UK are more often than not judicially foreclosed, argue Mullis and Scott. They argue further that the fact that this happens after very costly litigation leaves the concerned parties poorer and more drained emotionally and physically than when they first began the litigation process. This is why defendants have had nightmares of not only very protracted but also intrusive litigation while plaintiffs have tended to have delusions of large windfalls. They also argue that since honesty and efficiency are prized virtues in the modern society – and such costly and protracted litigation surrounding defamation cases takes both of them away – it follows that the law of defamation needs to be either re-examined or even abolished.[29]

While I support the proposal of amending defamation law to make it less tedious and costly in order to restore public confidence in the legal system and the law, I do not agree with the view that defamation law ought to be done away with. This is because in spite of its weaknesses, defamation law has helped people and organization to protect their reputations; and the world cannot possibly do with such laws.

Ciolli brings a new angle to the debate by analysing defamation on the internet. He argues that defamation occurs at the place where the exact damage to reputation (caused by the defamatory material) actually happens. On the Internet, this is point where the defamatory content is made public in a comprehensive form (where the material is downloaded from the internet. Therefore, the higher the amount of defamatory content that is downloaded the more the defendant can be held liable the defamation.[30]

Although the arguments here underscore what has generally been adopted, I believe that this is one other area in need of reforming. In essence, while I agree that this argument represents the reasoning in most jurisdictions when it comes to defamation conducted online, it is not fair to the media.

From this review of the literature, it is clear that there is significant research on the subject of defamation law and its impacts on the media. However, the current study still makes significant contributions to research because it approaches the subject from a different perspective. It specifically uses a comparative analysis of English and US defamation law with a view to establishing the extent to which the former restricts the media.

           

 

 

 

 

 

 

 

 

 

Bibliography

Articles

Barendt E, “Jurisdiction in Internet Libel Cases” (2005) 110 Penn St L Rev 727

Bates S, “Libel Capital No More-Reforming British Defamation Law” (2011) 34 Hastings Comm & Ent LJ 233

Bates S, “More SPEECH: Preempting Privacy Tourism” (2010) 33 Hastings Comm & Ent LJ 379

Bosland J, “Republication of Defamation under the Doctrine of Reportage—The Evolution of Common Law Qualified Privilege in England and Wales” (2011) 31 Oxford Journal of Legal Studies 89

Ciolli A, “Defamatory Internet Speech: A Defense of the Status Quo” (2006) 25 QLR 853

Garnett R, and Richardson M, “Libel Tourism or Just Redress? Reconciling the (English) Right to Reputation with the (American) Right to Free Speech in Cross-Border Libel Cases”(2009) 5 Journal of Private International Law 471

Godlee F, “Keep libel laws out of science” [2009] BMJ 339

Gurney K, “Myspace, Your Reputation: A Call to Change Libel Laws of Juveniles Using Social Networking Sites” (2009) 82 Temp L Rev 241

Hartley T, “‘LIBEL TOURISM’AND CONFLICT OF LAWS” (2010) 59 International and comparative law quarterly 25

Jobb D, “Responsible Communication on Matters of Public Interest: A New Defense Updates Canada’s Defamation Laws” (2010) 3 Journal of International Media & Entertainment Law 195

Jordan B, “The Modernization of English Libel Laws and Online Publication” (2011) 7 J INT’N L 3

Kenyon A, “What conversation? Free speech and defamation law” (2010) 73 The Modern Law Review 697

Kenyon A, and Leng H, “Reynolds Privilege, common law defamation and Malaysia” [2010] Sing J Legal Stud 256

Maly H, “Publish at Your Own Risk or Don’t Publish at All: Forum Shopping Trends in Libel Litigation Leave the First Amendment Unguaranteed” (2006) 14 JL & Pol’y 883

McLean S, “Overseas Website Operators Beware? ―The International Reach of the UK Defamation Laws: Status quo and potential changes by pending Defamation Bill” (2012) 5 Computer law review international 141

Mullis A, and Scott A, “Something rotten in the state of English libel law?: a rejoinder to the clamour for reform of defamation”(2009) 14 Communications Law 173

Reynolds G, “Libel in the Blogosphere: Some Preliminary Thoughts” (2006) 84 Wash UL Rev 1157

Weaver R, and Partlett D, “Defamation, Free Speech, and Democratic Governance” (2005) 50 NYL Sch L Rev 57

Wilmshurst P, “English libel laws and scientific research” (2012) 9 Significance 37

Wilmshurst P, “The effects of the libel laws on science-a personal experience” (2011) 104 Rad Stats 1

 

 

 

 

 

 

Books

Friend C, and Singer J, Online journalism ethics: Traditions and transitions (Routledge, 2015)

Nielsen R, Public Support for the Media (Oxford, UK: Reuters Institute for the Study of Journalism, 2011)

Cases

Dow Jones and Company Inc v Gutnick (2002) HCA 56; 210 CLR 575

[1] David Ardia, “Reputation in a Networked World: Revisiting the Social Foundations of Defamation Law” (2010) 45 Harvard Civil Rights-Civil Liberties Law Review 261

[2] Richard Parkes, Alastair Mullis, Godwin Busuttil, Adam Speker, and Andrew Scott, Gatley on libel and slander (Sweet & Maxwell Ltd, 2013), 31

[3] David Rolph, Reputation, celebrity and defamation law (Ashgate Publishing, Ltd, 2013), 3

[4] Russell Weaver, Andrew Kenyon, David Partlett, and Clive Walker, “Defamation law and free speech: Reynolds v Times Newspapers and the English media” (2004) 37 Vand J Transnat’l L 1255

[5] David Ardia, “Reputation in a Networked World: Revisiting the Social Foundations of Defamation Law” (2010) 45 Harvard Civil Rights-Civil Liberties Law Review 261

[6] Andrew Kenyon, Defamation: Comparative law and practice (CRC Press, 2013), 17

[7] Peter Humphreys, “Media Freedom and Pluralism in the United Kingdom UK” [2009] Press Freedom and Pluralism in Europe, Intellect 197

[8] Andrew Nicol, Gavin Millar, and Andrew Sharland, Media law and human rights (Oxford University Press, 2009), 16

[9] Tara Sturtevant, “Can the United States Talk the Talk & (and) Walk the Walk When It Comes to Libel Tourism: How the Freedom to Sue Abroad Can Kill the Freedom of Speech at Home” (2010) 22 Pace Int’l L Rev 269; Doug Rendleman, “Collecting a Libel Tourist’s Defamation Judgment” (2010) 67 Wash & Lee L Rev 467; Sarah Staveley-O’Carroll, “Libel Tourism Laws: Spoiling the Holiday and Saving the First Amendment” (2009) 4 NYUJL & Liberty 252; Kyu Ho Youm, “Actual Malice” in US Defamation Law: The Minority of One Doctrine in the World?” (2011) 4 J INT’L MEDIA & ENT L, 4 1

[10] Marin Roger Scordato, “The International Legal Environment for Serious Political Reporting Has Fundamentally Changed: Understanding the Revolutionary New Era of English Defamation Law” (2007) 40 Connecticut Law Review 1

[11] Stephen Bates, “Libel Capital No More-Reforming British Defamation Law” (2011) 34 Hastings Comm & Ent LJ 233

[12] Lee Salter, “Independent Media Centres and the Law: Some problems for citizen journalism” (2009) 175

[13] Andrew Nicol, Gavin Millar, and Andrew Sharland, Media law and human rights (Oxford University Press, 2009), 19

[14] Peter Humphreys, “Media Freedom and Pluralism in the United Kingdom UK” [2009] Press Freedom and Pluralism in Europe, Intellect  197

[15] Wayne Overbeck, and Genelle Belmas, Major principles of media law (Cengage Learning, 2012), 54

[16] Kaitlin Gurney, “Myspace, Your Reputation: A Call to Change Libel Laws of Juveniles Using Social Networking Sites” (2009) 82 Temp L Rev 241

[17] Peter Wilmshurst, “The effects of the libel laws on science-a personal experience” (2011) 104 Rad Stats 1

[18] Cecilia Friend, and Jane Singer, Online journalism ethics: Traditions and transitions (Routledge, 2015), 43

[19] Richard Garnett, and Megan Richardson, “Libel Tourism or Just Redress? Reconciling the (English) Right to Reputation with the (American) Right to Free Speech in Cross-Border Libel Cases”(2009) 5 Journal of Private International Law 471

[20] Stephen Bates, “Libel Capital No More-Reforming British Defamation Law” (2011) 34 Hastings Comm & Ent LJ 233

[21] Susan McLean, “Overseas Website Operators Beware? ―The International Reach of the UK Defamation Laws: Status quo and potential changes by pending Defamation Bill” (2012) 5 Computer law review international 141

[22] Peter Wilmshurst, “English libel laws and scientific research” (2012) 9 Significance 37

[23] Peter Wilmshurst, “English libel laws and scientific research” (2012) 9 Significance 37

[24] Glenn Harlan Reynolds, “Libel in the Blogosphere: Some Preliminary Thoughts” (2006) 84 Wash UL Rev 1157

[25] Andrew Kenyon, and Hean Leng, “Reynolds Privilege, common law defamation and Malaysia” [2010] Sing J Legal Stud 256

[26] Id.

[27] See Fiona Godlee, “Keep libel laws out of science” [2009] BMJ 339; Glenn Harlan Reynolds, “Libel in the Blogosphere: Some Preliminary Thoughts” (2006) 84 Wash UL Rev 1157

[28] Susan McLean, “Overseas Website Operators Beware? ―The International Reach of the UK Defamation Laws: Status quo and potential changes by pending Defamation Bill” (2012) 5 Computer law review international 141

[29] Alastair Mullis, and Andrew Scott, “Something rotten in the state of English libel law?: a rejoinder to the clamour for reform of defamation”(2009) 14 Communications Law 173; Andrew  Kenyon, “What conversation? Free speech and defamation law” (2010) 73 The Modern Law Review 697

[30] Anthony Ciolli, “Defamatory Internet Speech: A Defense of the Status Quo” (2006) 25 QLR 853

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