Libel: Its Purpose and Reform

Discussion of libel often fails to define defamation law's purpose and thus properly to assess its value. This article argues that defamation's purpose relates to fundamental human interests in sociality, directly linked to important aspects of human health and well‐being. Protecting such interests is arguably required by the right to private life under ECHR article 8 and should not count as a violation of the right to freedom of speech. Some current reform proposals are criticised as failing to appreciate the importance of protecting sociality. ‘Business’ libel, however, often protects not sociality but purely economic interests. The article therefore argues that the protection of libel law, as opposed to that offered by malicious falsehood and the economic torts, should be withdrawn from purely economic reputation, starting with removing the rights of corporations to sue in defamation, a position compatible with the ECtHR's decision in Karako v Hungary.     

Rethinking Criminal Libel: An Empirical Study

The prevailing view of criminal libel among communication law scholars in the United States is that there are very few prosecutions, that most of the prosecutions are about politics or public issues, and that none of the prosecutions are necessary because victims of defamation can sue for civil libel. The results of an empirical study of all Wisconsin criminal libel cases from 1991 through 2007, however, suggest that criminal libel is prosecuted far more often than realized, that most criminal libel prosecutions have nothing to do with political or public issues, and that the First Amendment is an effective shield on the rare occasions when a criminal libel prosecution is politically motivated. This article concludes that criminal libel can be a legitimate way for the law to deal with expressive deviance that harms the reputations of private figures in cases that have nothing to do with public issues.     

Suing Media for Libel: A Litigation Study

This article summarizes the results of a study of 291 reported cases brought against media for libel during a four-year period. The results confirmed the finding in an earlier study that only 5 percent of plaintiffs emerged from the appellate process with judgments compared with more than 60 percent of defendants. Most of the defense successes occurred without trial. In cases that did reach trial, plaintiffs were successful far more often before juries than before judges but lost more than half these judgments on appeal. Cases were analyzed in terms of the identity of the parties, the content of the charges, and the role of state and federal law in shaping the outcome. Despite the recent attention to federal constitutional protections, it is clear that media defendants still do, and must, rely heavily on state law defenses. Finally, the Hutchinson and Wolston rulings of 1979 produced little change in appellate decisions.     

论诽谤罪的价值抉择与检验逻辑——以彭水诗案为发端

诽谤罪的具体建构体现了现代社会面对人格尊严与言论自由的二难境地,正义天平倾斜的方向及角度都是社会价值观的体现和引导.虽然各国社会经济文化背景不尽相同,但是向言论自由的保护进行倾斜的普遍司法实践还是略透端倪.检验诽谤罪的逻辑重点应先区别事实与意见,再鉴别名誉毁损程度,然后要区分事实内容是否关乎公益,是否出于真正恶意,才能有利于诽谤罪的正确认定.     

The Process is the Punishment: Criminal Libel and Political Speech in Canada

The number of U.S. states with criminal libel laws has been steadily declining since the 1960s, and the offense has been struck down in the United Kingdom and several former British colonies. In Canada, however, criminal libel not only continues to exist, but appears to be enjoying a resurgence, albeit one that has flown beneath the radar of Canadian lawyers, judges, and journalists, who frequently assert that criminal libel prosecutions are rare. The research reported in this article found more than 400 prosecutions since the beginning of the twenty-first century. While many of these cases were brought against people who disseminated sexual slurs against former romantic partners, in a substantial number of cases criminal libel law was used to punish citizens’ political speech, particularly speech critical of police or other justice system officials, a use wholly inconsistent with the Canadian Charter of Rights and Freedoms.     

治安处罚中“诽谤”认定的言论自由考量

言论自由作为一项宪法基本权利,是一个社会极为重要的品格与价值.但言论自由并不是一项绝对化权利,而是一种可克减权利,其行使受到名誉权的限制.近年来,我国公安机关依据治安管理处罚中“诽谤”的规定,在很大程度上维护了公民的名誉权,但与此同时, “诽谤”的滥用也在一定程度上限制了公民的言论自由.究其根源,即是在对“诽谤”的认定中,言论自由是否应当被纳入考量范围.据此本文基于言论自由的视角,从法理上平衡名誉权与言论自由的需要,法律上言论自由条款的神圣地位,事实上顺应国际潮流的趋势三个层面论证了“诽谤”的认定离不开言论自由的考量.     

No Place in the Law: The Ignominy of Criminal Libel in American Jurisprudence

The application of the Sullivan standard to the crime of libel was a mistake. There is no common law affiliation with or legal justification for the existence of criminal libel in a democracy. Its existence is antithetical to the First Amendment's guarantees of equality of speech, as well as to the broader constitutional guarantees of equality of speaker. The crime has become almost completely indistinguishable from the tort of libel, both in form and function, as a result of its evolution in America-from the importance of truth as a defense to the audience's responsibility for its own reaction to the speech, violent or not. And the American experience demonstrates clearly and ignominiously that the abuse of prosecutorial discretion, and even the mere threat of prosecution, results in the suppression of constitutionally protected speech.     

Arab Defamation Laws: A Comparative Analysis of Libel and Slander in the Middle East

Nations in the Arab world are known for their restrictions on press freedom, with public officials often using defamation laws to hinder good journalism. To promote reform, this article analyzes defamation laws of six Arab countries – Egypt, Jordan, Kuwait, Lebanon, Libya and the United Arab Emirates – and compares them to international norms. In areas with strong press protections, three characteristics related to defamation law were identified. First, defamation cases should be handled by civil lawsuits rather than police complaints, so journalists are not threatened with jail for their reporting. Second, the law must afford greater scrutiny for public figures than for private individuals so that the powerful cannot stifle public debate. Third, truth must be an absolute defense against allegations of defamation, so that people cannot protect an undeserving good reputation. The analysis reveals that defamation provisions in these countries are not in alignment with international norms.     

Durie v Gardiner: Public Libel Law and Stare Non Decisis

This note examines the controversial case of Durie v Gardiner, a recent decision of the Court of Appeal of New Zealand, which radically altered the nation's public libel jurisprudence. It argues that Durie is incorrect as a matter of public libel law for three reasons. First, both Durie judgments failed to engage in freedom of expression theorising. Second, this undertheorising has caused significant confusion in Durie, including misinterpretation of material facts, breakdown of the ‘theory-doctrine’ interface, and a precipitous and unwarranted dismissal of the Court of Appeal's settled public libel principles. Third, owing to these difficulties, the Durie courts were in no position to import a new ‘public interest’ defence from foreign jurisdictions. Above all, by hastening towards wholesale law reform and ignoring its earlier comparative law deliberations, Durie arguably scuppers public libel law's best hope for advancement.     

论美国的出版自由诽谤诉讼案及启示

本文梳理和总结了美国历史上颇具影响的四个有关出版自由与诽谤诉讼案例,分析了联邦最高法院在诽谤诉讼中区分政府官员、公众人物与普通民众的缘由和保护媒体生存空间的做法,并对媒体在诽谤诉讼中占上风的原因提出自己的见解,对我国的舆论监督和新闻改革具有一定的借鉴意义。     

The Status of Criminal Libel in Grenada After Worme v. Commissioner of Police

In January 2004, the Privy Council, the final court of appeal for all British Caribbean states, held that a criminal libel statute providing for the two-year imprisonment of publishers libeling government officials was constitutional and consistent with a democratic society. Over the years, the constitutionality of criminal libel laws in the United States has been attacked with only marginally greater success than the Grenadian law. This article provides a background to the development of criminal libel laws in the two regions; traces the 2004 decision, the threats and actions brought against the media by the Grenadian government in its aftermath; and discusses the likely effect that it could have on the law of libel in the British Caribbean.     

William Lloyd Garrison,Benjamin Lundy and Criminal Libel: The Abolitionists' Plea for Press Freedom

Abolitionists Benjamin Lundy and William Lloyd Garrison in 1829-31 were sued and prosecuted in Maryland for criminal libel for condemning a ship owner and captain for transporting slaves. Lundy and Garrison's legal experiences, including Garrison's seven weeks in jail, resulted in a series of their writings that advocated broad protection for freedom of the press. Although their views on abolition were unpopular, their views on press freedom won support from other editors and helped shape subsequent debate over constitutional theory of freedom of expression, especially in the South.     

Libel Cases and Public Debate – Some Reflections on whether Europe Should be Concerned about SLAPPs

In recent years, Strategic Lawsuits Against Public Participation (SLAPPs) have become well-recognized as challenging free speech and public participation in the USA, Canada and Australia. However, in Europe SLAPPs remain largely unrecognized with little consideration of their use and impact. This paper argues that SLAPPs are used in Europe and have been neglected for a number of reasons. In order to examine the European SLAPP situation, this paper focuses on libel law in England and Wales. It considers the debate on free speech that has flowed out of libel cases and concludes by reflecting on what advantages might flow from a refocusing of that debate that includes a recognition of SLAPPs.     

Retract,Expand: Libel Law,the Professionalization of Journalism,and the Limits of Press Freedom at the Turn of the Twentieth Century

At the turn of the twentieth century, many judges and juries considered libel law to be a robust check against a reckless and sensational press. So how did the newspaper industry convince seventeen state legislatures between 1885 and 1915 to pass laws easing liability for accidental libel? This article analyzes a debate surrounding libel law reform to tell the story of how retraction statutes were conceived in press association meetings, enacted in spite of lawyers' reservations, and challenged in state supreme courts during a pivotal era in the professionalization of journalism. It offers a better understanding of the power of the institutional press to influence Americans' conception of the purpose of press freedom and the role of journalism in democratic society, and a clearer picture of the beginnings of a more press friendly era in libel law, from the wire service defense to the actual malice standard.