Legal Approach to Defamation - Essay Example

Legal Approach to Defamation Democracy and the theory of marketplace of ideas provide a consequential, functional and utilitarian discernment of freedom of expression. From such understanding, is derived the notion of privileged protection of the media. Consequently, media should be described by the function it serves, and not by the medium through which ideas or information are conveyed, nor the entity making the statement (Oster, 2013, p. 77). As such, the principal function of the media is to furnish, on a regular basis, information and ideas relating to matters of general interest. Such information and ideas have to be garnered and edited in accordance with some explicit norms of conscientious conduct. Private bloggers, who contribute regularly to matters of public interest should be embraced by this definition of the media (Oster, 2013, p. 77). Defamation Laws of UK v US The defamation laws of the UK have traditionally been biased towards the victim. In order to render its defamation laws more contemporaneous, the UK Parliament enacted the Defamation Act 2013. Section 5 of this act establishes a system of notice and takedown, with regard to defamation emanating from user generated content (UGC). When there is failure to remove content, in a timely manner, after the receipt of a takedown notice, an online service provider will be deemed to be liable under this act (Goldman, 2013). In Tamiz v Google, Inc, defamatory comments were posted against the claimant by some individuals on the blog hosted by Google. The court held that the damage to the claimant’s reputation would have been negligible, as these comments would have receded into the past and its attendant anonymity, within a few days (Murray, 2013, p. 190). In addition, the Electronic Commerce Directive of the European Union (EU) had formulated a notice and takedown mechanism that was applicable to every form of UGC. The Defamation Act of the UK was aimed at providing some relief to the operators of websites. However, the outcome of this act was that UGC websites had to identify and authenticate the users of their websites. Otherwise, they would not be provided with the legal protection of the notice and takedown system (Goldman, 2013). However, the law and ethics pertaining to the media have evolved in a different manner in the US, in comparison to the UK. The most important disparity is the consequence of the First Amendment of the US Constitution, which provides for a right to freedom of press that is absolute and unqualified (Crook, 2010, p. 1). The UK has included into its legislation, the European Convention on Human Rights (ECHR). This is the Human Rights Act 1998 (Crook, 2010, p. 2). Some of the differences between the UK and the US, with regard to the freedom of expression are; first, the US incorporates a constitutional principle that guarantees freedom of expression, whereas the UK is distinguished by a legislative principle (Crook, 2010, p. 2). Second, the US Congress is prohibited from formulating laws that abridge the freedom of speech or the freedom of the press. In the UK, Article 10 of the ECHR is applicable, which declares that every individual possesses the right to freedom of expression. Some of the characteristics of this right are the freedom to hold opinions; import and receive information, independently of frontiers and without any interference from public authority. However, nations can insist upon the licensing of enterprises engaged in broadcasting, cinema or television (Crook, 2010, p. 2). Strictly speaking, the First Amendment of the US Constitution had an absolutist implication that admitted of no qualification whatsoever. Thus, in Sullivan v New York Times, Black and Douglas, Justices of the US Supreme Court held that the exhortation in the First Amendment of the US Constitution that Congress was not to make any law that curtailed the freedom of press and speech connoted that Congress was precluded from formulating such law (Crook, 2010, p. 2). In Observer and The Guardian v United Kingdom, excerpts from Spycatcher, a book by Wright had been published by the Observer and Guardian newspapers. This material contained allegations that the MI5 had engaged in unlawful activities. The UK Government procured an injunction preventing any further publication on this topic until the finalisation of the related proceedings. Thereafter, Wright’s book was published in several countries other than the UK (Department for Constitutional Affairs, 2006, p. 35). The Guardian newspaper contended that its right to freedom of expression, provided by Article 10 of the ECHR, had been infringed by the injunction. The European Court of Human Rights (ECtHR) held that after the publishing of the book in the other countries, the prohibition was unjustified. The ECtHR further held that the injunction should have been discharged, the moment the information had ceased to be confidential (Department for Constitutional Affairs, 2006, p. 35). The ECtHR further held that the injunction should have been discharged, the moment the information had ceased to be confidential. In addition, a special qualified privilege, with respect to the publication of statements in academic or scientific journals, has been provided under Section 6 of the Defamation Act 2013. The burden of the proof has been placed upon the defendant. Some of the conditions to be satisfied, for a successful defence, in such cases, are; first, the statement should pertain to an academic or scientific matter. Second, a peer review of the material should have been performed by the acknowledged experts in the field that the matter relates to. Third, the statement, in question, should not have been made with malice (Caddell & Johnson, 2013, p. 12). The ECtHR had deemed the term private life to be such that it could not be described by any comprehensive definition. During the Third International Colloquy on the European Convention on Human Rights, it was agreed that the term private life encompassed a vast body of law, whose boundaries defied description. Not surprisingly, new rights emerged from the right to respect for private life (Brems & Gerards, 2013, p. 323). UK Case Laws In Albert Reynolds v Times Newspapers Limited, the issue of qualified privilege was scrutinised by their Lordships. The endeavour to expand the ambit of the common law principle of qualified privilege served to illustrate the fact that the media could be justified, under certain circumstances, to successfully enter a public interest based defence regarding their publications. However, this ruling had the disadvantage of imposing an onerous evidential burden upon the party resorting to this defence (Moore, 2000, p. 130). It is indeed distressing to note that the judiciary and the legislature of the UK had failed to promote the freedom of expression of the media, to the same extent as their American peers. To be specific, the judiciary did not extend qualified privilege, while the legislature refused to enact legislation that would provide a public figure defence (Moore, 2000, p. 130). There is a pressing need for such initiatives. This is on account of the fact that there have been several occasions, wherein the politicians and other public figures have resorted to the libel laws to prevent the publication of information that could damage their public standing. These individuals have also resorted to libel laws to preclude public debate on legitimate matters of grave import to the welfare of society at large (Moore, 2000, p. 130). The House of Lords and subsequently, the Supreme Court have been positive laggards, with regard to adopting the international norms relating to the freedom of expression of the media. There is substantial disparity between the standards promoted by the European Court of Human Rights (ECtHR) and the English judiciary (Dickson, 2013, p. 310). In The Observer and The Guardian v United Kingdom, the so called Spycatcher case, the ECtHR emphasised the crucial function of the press as a public watchdog (Janis, et al., 2008, p. 266). In the Spycatcher and similar cases, the ECtHR has pointed out the folly of its ways to the highest court of the UK, with regard to the law pertaining to the protection of sources from which journalists derive information of a sensitive nature. Nevertheless, the decisions of the Strasbourg Court have failed to engender the required effect upon the Supreme Court of the UK. The latter has been seen to persist in its overbearing and somewhat disapproving attitude towards the media’s right to freedom of expression (Dickson, 2013, p. 310). In Campbell v Daily Mirror, the majority of the presiding Law Lords came to the conclusion that the Daily Mirror was vindicated in its action of portraying the reality that Campbell had uttered a falsehood, by declaring that she did not consume intoxicating substances. However, their Lordships ruled that the newspaper was not entitled to publish a photograph of Campbell emerging from an institution dedicated to curing drug dependence (Crook, 2010, p. 134). The question arises, whether the newspaper would have been permitted to use the photographic evidence to defend itself, if a libel suit had been initiated against them by Campbell. Apparently, this exposes the decision of the House of Lords, in this case, to the criticism that their Lordships had obscured the boundaries between libel and privacy (Crook, 2010, p. 134). In Mosley v News Group Newspapers, privacy action was taken by Mosley against the defendant, which had photographed his participation in a salacious session involving women of questionable morals. The Queen’s Bench held that the newspaper had failed to establish that Mosley had engaged in Nazi role playing, which would have involved a public interests dimension (Crook, 2010, p. 135). In essence, the court held that the right to freedom of expression of the newspaper was subordinate to the right to respect for privacy enjoyed by Mosley. Moreover, the female who had filmed the entire sordid episode owed a duty of confidence towards Mosley. The court also held that the publicising of Mosley’s deviant conduct had no public interest ramification (Crook, 2010, p. 135). Compelling the media to establish the veracity of all their factual assertions could lead to the self – censorship of the media. An investigative journalist, who is convinced about the truth of his allegation, may find it very difficult to prove the same in court. In addition, the journalist could have obtained the information on condition of keeping the source confidential. Furthermore, it could prove difficult to locate the person providing the intimate information (Moore, 2000, p. 128). Consequently, the compulsion to prove their assertion in court, could constrain the media to abstain from publishing such material. This could genuinely harm public interests. Over time, the media could even totally abstain from supporting investigative journalism. This had been termed the “chilling effect”, and it had been quite familiar to the US media (Moore, 2000, p. 128). US Case Laws In International Shoe Co v Washington, the Supreme Court of the United States established the basic requirement for bringing a suit before a court in the US. This was the necessity for the court to have power or personal jurisdiction over the defendant. In general, such power was derived from a statute of the state, wherein the court was located (Abah, 2008, p. 530). However, it has been the tradition for a state to have a long arm statute, which facilitates personal jurisdiction over a defendant from some other state. For enforcing this power, the defendant should have actual contacts with the forum, as per the ruling of the US Supreme Court in Pennoyer v Neff (Abah, 2008, p. 530). In Milliken v Meyer, the Supreme Court of the United States held that it was sufficient, if the defendant’s contacts with the forum were sufficient to ensure the customary concepts of substantial justice and fair play. Such minimum contacts had been enjoined by the Fifth Amendment to the US Constitution’s due process clause (Abah, 2008, p. 530). The US courts had been seized with extending these traditional rules to the realm of the Internet associations. In Inset Systems Inc v Instruction Set Inc, a Connecticut federal court had determined that an advertisement on the Internet, which was seen at that place, was adequate for the purpose of conferring jurisdiction in the state of Connecticut. This decision was regarded as radical, and subsequent rulings had deemed it expedient to discourage this trend (Abah, 2008, p. 530). Thus, the US courts had been disinclined to discern jurisdiction over the Internet based defendants who belonged to some other jurisdiction. This was the gist of the ruling in Digital Control Inc v Boretronics Inc. A test was established, by the District Court for the Western District of Pennsylvania, in Zippo Manufacturing Co v Zippo Dot com Inc. This test served to correlate the jurisdictional issue founded on contact on the Internet with the degree of the commercial nature of information exchange and interaction on the web site (Abah, 2008, p. 530). Firth v State furnishes a clear illustration of limited liability for posters on the Internet. The plaintiff’s contention that the rule of single publication should not be applied to the Internet was summarily rejected by the New York Court of Appeals. The court also rejected the claim that each hit to a site on the Internet was to be regarded as a new publication (Notes, 2010, p. 1320). The apprehension of the court was that such a rule would severely curtail the open and universal dissemination of information and ideas over the Internet. With respect to news, the court held that permitting greater liability for defamatory content would have a suffocating effect. This was due to the fact that compelling the media to conduct more incisive analysis and research would increase the time required to place information over the Internet (Notes, 2010, p. 1321). On permitting the multiple publication rule to come into force, posters would be dissuaded from altering content as more facts emerged. This was based on the reasoning that such revision of content could produce a new publication that in turn could recommence the statutory period (Notes, 2010, p. 1321). Moreover, it has been observed by the court in Lehman v Discovery Communications Inc that liability for republication can be averted, if the decision maker undertakes a conscious decision to abstain from rebroadcast. The publishers of online content do not possess this capability, and they cannot determine when to excise material. This situation results from the fact that although, publishers can remove content from a specific website, hyperlinking and caching ensure that the material posted online cannot be subjected to any tangible control (Notes, 2010, p. 1322). Furthermore, in New York Times v Sullivan, the New York Times was sued by the Commissioner of Public Affairs for the city of Montgomery, Alabama for libel. The jury damages award granted was reversed by the US Supreme Court, which found in favour of the New York Times (Moore, 2000, p. 128). Significantly, the US Supreme Court established via its ruling in this case that the plaintiff had to establish the falsity of any factual claims made against it, in order to succeed in a defamation action. Furthermore, the plaintiff had to demonstrate that the defendant had published the defamatory statement with reckless disregard for its truth or with awareness of its mendacity (Moore, 2000, p. 128). With this decision it was clarified that although a defamed person was entitled to seek redress through the law, that entitlement was governed by the protection accorded to freedom of expression by the First Amendment to the US Constitution. This ruling promulgated the standard of “actual malice”, and recognised the crucial significance for democracy, inherent in permitting the open and robust criticism of public officials. Subsequently, the US courts extended this principle to encompass all public figures and not just the public officials (Moore, 2000, p. 129). Despite the ruling in New York Times v Sullivan, there has been no appreciable increase in irresponsible reporting. The US media operates under the guarantee that their judiciary recognises and respects freedom of expression arguments presented by them during the defence of their publications. To their unmitigated credit, the US media preserves and believes in superlative ethical norms of precision and veracity (Moore, 2000, p. 129). Conclusion The lesson to be gleaned from the American approach to the freedom of the media is that it is vitally important to preserve the constitutional position of freedom of expression, whilst striking a balance between conflicting interests. Nevertheless, libel litigation has not been discarded in the US. Despite the presence of libel actions, the US media tends to be less apprehensive of such insidious attempts to curb their freedom of expression than their counterparts across the Atlantic In the US, the First Amendment accords an unqualified right to freedom of expression. However, in the UK, there are restrictions on this freedom. The case law of the US reveals the fact that the balance is tilted towards the right to freedom of expression, in contrast to the right to privacy of the individual. The US accords considerable importance to investigative journalism. As per the above discussion, it can be surmised that the US promotes the freedom of expression to a greater extent than individual privacy rights. On the other hand, freedom of expression is curtailed to a major extent in the UK. The UK cases discussed above, reiterate the fact that freedom of expression is subservient to the privacy rights of individuals. Albeit, the Defamation Act accords qualified privilege, the burden of proof of assertion, in libel cases has been placed upon the defendant. This establishes the unfavourable bias exhibited by the UK courts towards an unqualified right to freedom of expression. As such, it can be surmised that the US courts have a greater proclivity to protect the right to freedom of expression, in comparison to the UK courts. References Abah, A. L., 2008. Trends in International Internet Defamation Suits: Targeting a Solution?. International Communication Gazette, 70(6), pp. 529 – 546. Albert Reynolds v Times Newspapers Limited (2001) 2 AC 127 (HL). An Act to amend the law of defamation 2013. (c. 26). London, UK: Her Majestys Stationery Office. Brems, E. & Gerards, J., 2013. Shaping Rights in the ECHR. Cambridge, UK: Cambridge University Press. Caddell, R. & Johnson, H., 2013. Blackstones Statutes on Media Law. 4 ed. Oxford, UK: Oxford University Press. Campbell v Mirror Group Newspapers Ltd (2004) UKHL 22. Crook, T., 2010. Comparative Media Law and Ethics. Abingdon, Oxon, UK: Routledge. Department for Constitutional Affairs, 2006. Human rights: human lives. [online] Available at: [Accessed 25 December 2013]. Dickson, B., 2013. Human Rights and the United Kingdom Supreme Court. Oxford, UK: Oxford University Press. Digital Control Inc v Boretronics Inc (2001) 161 F. Supp. 2d 1 . Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce). Brussel, België: The European Parliament and of the Council of the European Union. George Firth v State of New York (2002) 2002 NY Int 88. Goldman, E., 2013. UKs New Defamation Law May Accelerate The Death Of Anonymous User-Generated Content Internationally. [online] Available at: [Accessed 25 December 2013]. Human Rights Act 1998. (c. 42), London, UK: Her Majestys Stationery Office. Inset Systems Inc v Instruction Set Inc (1996) 937 F. Supp. 161 (D. Conn). International Shoe Co v Washington (1945) 326 US 310. Janis, M. W., Kay, R. S. & Bradley, A. W., 2008. European Human Rights Law: Text and Materials. Oxford, UK: Oxford University Press. Martin A Lehman v Discovery Communications Inc (2002) 217 F Supp 2d 342. Milliken v Meyer (1940) 311 US 457. Moore, G., 2000. The English legal framework for investigative journalism. In: H. de Burgh, ed. Investigative Journalism: Context and Practice. London, UK: Routledge, pp. 123 – 150. Mosley v News Group Newspapers (2008) EWHC 1777 (QB). Murray, A., 2013. Information Technology Law: The Law and Society. Oxford, UK: Oxford University Press. Notes, 2010. The Single Publication Rule and Online Copyright: Tensions between Broadcast, Licensing, and Defamation Law. Harvard Law Review, 123(5), pp. 1315 – 1338. Observer and The Guardian v United Kingdom (1991) 14 EHRR 153. Oster, J., 2013. Theory and Doctrine of Media Freedom as a Legal Concept. Journal of Media Law, 5(1), pp. 57 – 78. Pennoyer v Neff (1878) 95 US 714. Sullivan v New York Times (1964) 376 US 254. Tamiz v Google Inc (2013) EWCA Civ 68. The Convention for the Protection of Human Rights and Fundamental Freedoms, 1950. Rome, Italy: Council of Europe. The Observer and The Guardian v United Kingdom (1991) 14 EHRR 153. Zippo Manufacturing Co v Zippo Dot com Inc (1997) 952 F. Supp. 1119. Read More