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.
By:
Mariette Jones
Imprint: Routledge
Country of Publication: United Kingdom
Dimensions:
Height: 234mm,
Width: 156mm,
Weight: 453g
ISBN: 9781032520025
ISBN 10: 1032520027
Series: Routledge Research in Human Rights Law
Pages: 190
Publication Date: 28 June 2024
Audience:
College/higher education
,
Professional and scholarly
,
Primary
,
Undergraduate
Format: Hardback
Publisher's Status: Active
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
Mariette Jones is Senior Lecturer in Law at Middlesex University, UK.
