1st Edition
Defamation and the Right to Freedom of Speech The UK in Comparative Perspective
In an effort to balance the protection of reputation and the right to free speech, the UK Parliament attempted to fundamentally transform English libel law through the Defamation Act 2013. This book evaluates the success of this attempt by means of a comparative analysis of relevant law in the United States of America (US), Germany, and the European Court of Human Rights. It examines the reasons that it was deemed necessary to reform the common law of defamation in England and Wales, the changes wrought by the act, and the case law it has engendered. As defamation often occurs internationally, the book also takes a broad comparative look at the way in which other relevant jurisdictions attempt to balance reputational protection and free speech. The natural starting point is the US where freedom of expression is strongly protected by the US Constitution. From there the focus shifts to Germany where both competing legal interests are likewise given constitutional protection. The European Court of Human Rights’ jurisprudence is also examined because of its highly developed balancing approach and its general reflection of European legal thinking. Recent high-profile defamation cases such as those concerning the actors Johnny Depp and Amber Heard, decided in the UK as well as the US, form interesting and informative case studies. The final section of the work rates the libel reform attempted in the UK against its own benchmarks, provides suggestions about the way in which it is developing, and concludes that valuable lessons can still be learnt from the comparator jurisdictions. The book will be essential reading for those working in the areas of human rights law and media law.
Introduction 1
General background 2
Chapter summaries 4
1 Defamation and freedom of speech 6
Freedom of speech 6
Reputation 9
Other threats to free speech 11
The balancing exercise 13
England and Wales 15
The United States of America 17
Germany 20
The European Court of Human Rights 22
Conclusion 23
2 Common law of defamation in England and Wales prior to the Defamation Act 2013 25
Introduction 25
The common law tort of defamation 26
Defamatory statement 26
‘Single meaning’ rule 29
Peculiar characteristics of the tort of defamation which may have led to the imbalance vis-a-vis free speech 31
Strict liability 31
Presumption of harm: actionable per se 33
Presumption of falsity 34
Free speech rationale for defamation reform 37
The chilling effect 37
Costs 38
Libel tourism 39
Conclusion 42
3 Defamation law in England and Wales after the 2013 reforms 45
Introduction 45
The Defamation Act 2013: the claimant 47
Defamatory meaning 48
Serious harm to reputation 51
Jury trials ‘abolished’ 63
Libel tourism 64
The Defamation Act 2013: defences 64
Truth 65
Honest opinion 66
Privilege 67
Publication on matter of public interest: successor to the Reynolds defence 69
Claims against persons who are not the primary publisher of the defamatory statement 79
Analysis 82
The Depp cases 82
Miscellaneous 85
Cost and complexity 85
Strict liability and the reverse burden of proof retained 89
The presumption of falsity retained 90
Summary 91
4 Defamation in the United States of America 93
Introduction 93
Constitutional protection of freedom of speech 94
Permissible limitation of freedom of expression in the United States 97
Clear and present danger (of imminent lawless action) 97
Prohibition against prior constraint 97
Compelling reason necessary for restriction of freedom of expression 98
Contemporary US defamation law 100
New York Times v Sullivan 100
From public officials to public figures 102
Purely private figures: Gertz 102
Comparison to UK defamation law 103
Analysis 107
Conclusion 109
5 Defamation in Germany 110
Introduction 110
Some caveats for the common law scholar 111
Constitutional protection of the right to freedom of expression 116
Protection of reputation as a subcategory of personality rights 117
Defamation law in Germany 118
Case study: the Jan Böhmermann affair 122
Guidelines from the German Federal Constitutional Court 124
Balancing exercise 125
Public discourse, context, and the right to reply 129
Status of the libel complainant 130
Opinions as opposed to abusive criticism 130
Analysis 134
6 Defamation in the European Court of Human Rights 138
Introduction 138
The ECtHR: balancing competing rights 139
Recognition of the chilling effect 140
Developments in the ECtHR 142
Freedom of expression 142
How the right to privacy being conflated with reputational rights led to a devaluation of the status of article 10 143
Balancing articles 10 and 8 148
Application in the ECtHR: a case study of Delfi v Estonia and Hoiness v Norway 155
Analysis 161
Balancing speech with reputation 162
The proportionality test 162
Margin of appreciation: types of speech 163
7 Analysis and conclusions 164
The value of a comparative analysis 165
Reputation, speech, and the events that led to the Defamation Act 2013 165
The Defamation Act 2013 169
United States 174
Germany 175
European Court of Human Rights 176
Conclusion 178
Index 180
Biography
Mariette Jones is Senior Lecturer in Law at Middlesex University, UK.
