Literature Review

Literature Review

This chapter undertakes a critical review of the literature on the subject of defamation law and its impacts on freedom of the media. The chapter seeks to locate the study in the body of knowledge by pointing out what has been researched and the areas that need further research (gaps). The chapter reviews the literature on the basis of the themes that emerge.

Prohibitively High Costs of Defamation Cases

One of the areas covered in the literature to a significant extent is the cost of defamation cases. Generally, these cases are very costly compared to most other cases. Different countries and legal systems cap the damages awarded in defamation cases at different levels. However, even these caps do not help lower the costs incurred. This is especially so given that the loser in the case has to pay all the costs incurred. In essence, the loser has to pay not just the damages but also his own costs and the costs of the winner.[1]

In fact the very fact that caps have to placed on the damages awarded in defamation cases shows that these cases are very costly. Otherwise there would be no need for capping the damages awarded. In England and Wales, the damages that can be awarded in libel cases are capped at 200,000 Sterling pounds.[2]

The high costs of defamation cases, therefore, 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 in the area of defamation to develop.[3]

I agree with the view that high costs of defamation cases have become an impediment to justice in the area of defamation. Both the 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.[4]

Having noted that, there is something worth adding that has not been mentioned in the above research. This has to do with the complicated nature of defamation cases. Since the stakes are usually very high and rules of evidence often equally complicated, defamation cases almost always get protracted.[5]

Basically, complicated defamation has made such cases to be just as complicated. The end result is that these cases can drag in the legal systems for many years – sometimes up to five years. This not only delays justice but also pushes legal costs even higher. The longer the cases last the higher the costs that are incurred and the higher the chances that the losers of the case would become bankrupted by the case.[6]

Free Speech versus Defamation

An interesting issue which is found in the literature is the near-consensus among scholars that there is either too much protection for defamers or too much protection for the press.[7] On the other hand, there are those who are of the view that defamation law has become too overwhelmed by constitutional protection to be of any help to people and organizations that are genuinely defamed.[8]

Those in support of this view have contended that 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.[9]

On the other hand, those who argue in favour of free speech contend that libel and slander laws have generally been restrictive.[10] They argue that free speech is a fundamental human right unlike protection of reputations which is basically a matter of personal preference. With respect to countries, the UK and the US are known to be at two extreme ends of the law on defamation in general and when it comes to protection of free speech and protection of individuals and organizations from defamation in particular.[11]

The UK is notorious for having very restrictive defamation laws that are largely friendly to the claimants.[12] On the other hand, 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.[13]

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.[14]

As a result, courts have gone out of their way to impose several other constitutional limitations on actions of libel.[15] This has in turn made it quite hard – almost impossible – for anyone suing for defamation to get the reward. This is mainly because it has become very hard for victims of defamation to meet the actual malice requirements set in place by the law. Furthermore, the few victims who manage to meet these requirements are most likely to be confronted by other constitutional provisions.[16]

The arguments above represent the real situation on the ground. Indeed there have arisen controversies regarding just how to balance between rights to free speech and misuse of free speech (defamation).[17] While this applies to all people and organizations, it is especially a key issue where the media is concerned. The media is supposed to report what is true and valid; and in doing so there can be no denying that some information could easily pass as libel or slander.[18]

As such, I believe it is right to have sufficient protections for the media against libel. This ensures that the media has the confidence to report about critical events without fear. Unfortunately, many jurisdictions have tended to give defamation laws priority over free speech laws. This has seen libel exacting a price from speech. In essence, many people have been able to sue the media for defamation in spite of the available protections.[19] This means, then, that the law needs to be changed to protect the media from defamation suits as a way of enhancing freedom of speech.

Without encouraging the media to defame, the law has to take into consideration issues such as the likelihood of defamation cases actually returning a verdict and the costs involved. As it stands, the real issue that the media fears – and therefore stops it from reporting freely and fearlessly – is the costs of litigation if sued for defamation. Rather than risk being bankrupted by the high costs without any possibility of a fair settlement, the media has been forced to only report what is deemed to be non-controversial and verifiable.[20]

Yet, by all standards, this is not what media is normally supposed to do. Among other roles, the media has to be investigative and as such use and publish information that is not necessarily agreeable by all parties mentioned.[21] In view of these shortcomings, reform of defamation law is the only way out of this standoff.

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.[22] 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.[23]

It has also been argued that the current system – both in the UK and the US – is such that most of the claims made are more often than not judicially foreclosed.[24] 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.[25]

The public, as mentioned earlier, is left without any more confidence in the law and the legal system as it is not able to convincingly determine whether the law is in favour of falsehood or truth. 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[26] – it follows that the law of defamation needs to be either re-examined or even abolished.

While I support the proposal of amending defamation law to make it less tedious and less 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. For its weaknesses, defamation law has helped people and organization to protect their reputations. Just like the modern world is in need of efficiency and honesty, it is also in need of tolerance and respect. Without the appropriate defamation law, malicious people will go out of their way to injure the reputations of their enemies whether in social or commercial circles.[27]

The world cannot possibly be freed from malice. As such, defamation law needs to protect people and organization from those keen to maliciously damage reputations. Unless and until there can be assurances to the public that malice is not present in people, then defamation law ought to remain in place. Otherwise character assassination and other forms of defamation will become the new norm in society.

Defamation and the Internet

Studies investigating the place of defamation in the age of the internet have also increased significantly over the last decade. The major argument has centred on the issue of the place and who is supposed to be held culpable in case of libel.[28]

With regard to place, defamation is determined to have occurred at the place where the exact damage to reputation (caused by the defamatory material) actually takes place.[29] In the case of the internet, this place is the location or point on the internet where the defamatory content is made public in a comprehensive form. This is basically the point where the material is downloaded from the internet. As such, the more content alleged to be defamatory is downloaded the more the defendant can be held culpable for repeating the defamatory remarks.[30]

Although the arguments here underscore what has generally been adopted, I believe that this 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.

Media organizations usually have very huge following and as such any material they publish online is likely to receive a lot of attention. If defamation is deemed to be committed every time the content is seen or downloaded, then this places the originator of the content in very serious trouble. As such, there ought to be more ways of ensuring that the publisher of content online is protected from defamation claims if free speech is to be exercised on the internet as it is in other forms of media.

Media and the Development of the Legal System

The role of the media in the development of the legal system is also an issue given significant attention in the literature. All over the world – including in some of the countries notorious for media censuring – the media has emerged to become the most influential actor when it comes to providing information to the public.[31] A combination of media commercialization, increased editorial discretion, and growing attention to legal and social problems has ensured that there is incentive for the media to greatly expand its role as the mouthpiece of the public. This has made the media at least one of the most important and effective avenues through which citizens can find redress.[32]

Unfortunately, this expanded role has brought the media in direct conflict with the legal system.[33] The media has been criticized not for defamation per se but for being a major influencer of the decisions reached by courts especially in high-profile cases. Depending on the country concerned and the level of freedom accorded the media, it is possible for the media to influence the outcome of a case.[34] This takes place largely by virtue of the fact that the media can reflect and create public opinion. Essentially, this raises issues of conflict of interest where the media itself could be the defendant in a case as it happens so often in libel cases.[35]

The argument here is mostly true especially with regard to the growing role of the media as the mouthpiece of the public. What is not agreeable to me, however, is that the media’s powers need to be checked just because the media is alleged to have capacity to influence court decisions (including cases pertaining to the media itself). I differ with this argument because freedom of expression is a fundamental right enshrined in international law.[36] As such, the media – which is the mouthpiece of the public – ought not to be unnecessarily censored for playing its role.

The media simply makes public what is happening in courts regardless of the parties to the specific cases. As such, it is not for the court to make decisions based on what the media says but based on the merits of each case. The issue of conflict of interest ought not to arise here at all either. This is because the media itself has been unfairly targeted especially in libel cases; and as such it has the right to use whatever means it has at its disposal (in this case informing the public about the case’s progress) to its advantage. If anything, I believe that in the age where libel against the media has increased significantly,[37] the media ought to be given more rights to freely express itself.

Conclusion

From the literature review, it can be concluded that there is significant literature already published on the subject of defamation law and its impacts on the media. However, the current study still makes significant contributions to the body of knowledge by researching the subject not generally but from the perspective of two major nations in the world – England. A comparative approach to the issue has also not been undertaken in the literature. As such, the current study – by comparing English and US defamation laws – makes valuable contributions to this subject matter.

           

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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

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

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

[4] 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

[5] Heather Maly, “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

[6] Russell Weaver, and David Partlett, “Defamation, Free Speech, and Democratic Governance” (2005) 50 NYL Sch L Rev 57

[7] See for instance Jason Bosland, “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; Peter Wilmshurst, “English libel laws and scientific research” (2012) 9 Significance 37

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

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

[10] 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

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

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

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

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

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

[16] Trevor Hartley, “‘LIBEL TOURISM’AND CONFLICT OF LAWS” (2010) 59 International and comparative law quarterly 25

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

[18] Id.

[19] 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

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

[21] Russell Weaver, and David Partlett, “Defamation, Free Speech, and Democratic Governance” (2005) 50 NYL Sch L Rev 57

[22] 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

[23][23] 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

[24] See 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

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

[26] 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

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

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

[29] Ibid.

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

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

[32] Eric Barendt, “Jurisdiction in Internet Libel Cases” (2005) 110 Penn St L Rev 727

[33] Rasmus Kleis Nielsen, Public Support for the Media (Oxford, UK: Reuters Institute for the Study of Journalism, 2011), 24

[34] Trevor Hartley, “‘LIBEL TOURISM’ AND CONFLICT OF LAWS” (2010) 59 International and comparative law quarterly 25

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

[36] 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

[37] Rasmus Kleis Nielsen, Public Support for the Media (Oxford, UK: Reuters Institute for the Study of Journalism, 2011), 36

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