Strategic Lawsuits Against Public Participation: The British Columbia Experience

In 2001, the province of British Columbia (BC) became the first Canadian jurisdiction to enact anti-SLAPP legislation. While this legislation proved to be short lived, the BC experience around the issue of SLAPPs is instructive for law reformers both in Canada and beyond. In this article, the authors describe the legal and political processes that set the stage for the passage of the 2001 law, and its subsequent repeal. They also provide a detailed analysis and critique of key aspects of the debate surrounding the design of the law, and consider its efficacy in identifying, dismissing and deterring SLAPP lawsuits. They conclude with some observations with respect to the current status of the SLAPP issue in BC.     

英国2013诽谤法对ISP的最新规定及对我国的启示

2013年英国颁布了诽谤法修正案,其第5条对ISP进行了有针对性的立法,以ISP是否对发布的内容有影响或控制为标准,将ISP分为两类,并适用不同的责任构成,将通知即删除原则成文化,同时制定了明确的适用的规则。其总体方向是在坚持传统的基础上,确保法律与时俱进并且适用;在平衡言论自由与名誉权的基础上,寻求在最大程度上保护ISP而不是承担责任。英国2013诽谤法使我们从现实合理性方面审视我国网络诽谤立法及ISP现状,据此提出《侵权责任法》第36条第3款的修改意见及我国将来的网络诽谤立法或司法适用的一些基本原则。     

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.     

Anti-SLAPP Law Reform in Australia

The last 20 years has seen a growth in litigation against public participation in Australia and a broadening of the mechanisms used. Following changes to the defamation laws in 2005, commercial torts are increasingly being used against critics and protest groups. Australia's highest profile example, the so-called 'Gunns 20' case, brought the problems of such litigation into the public realm and provided a major impetus for law reform. One Australian jurisdiction has now adopted limited anti-Strategic Litigation Against Public Participation (SLAPP) legislation and SLAPPs are being raised in the context of national debates over a Human Rights Act. However, comprehensive anti-SLAPP law reform is still some way off.     

Defamation in cyberspace: A Japanese perspective

The aim of this paper is two-fold: first, to introduce how Japanese law and its jurisprudence have dealt with the case of on-line defamation, which is arguably one of the most acute problems in modern society, and second, to critically examine the efficacy of such an approach. The recent decision of the Supreme Court in on-line defamation (as oppose to off-line defamation) will be introduced as an exemplar of the way Japanese law and its jurisprudence have dealt with such an acute problem. A first step will be to provide, by way of background, a brief overview of how defamation in a conventional sense has been treated by the Japanese legal system. The second step will be to outline how the Japanese jurisdiction has dealt with on-line defamation, that is to say, to what extent the Japanese court regulates on-line defamatory comments made by the ordinary people. A third step will be to examine the efficacy of such an approach, and the final step will be to examine whether the UK court can learn a lesson from the Japanese jurisdiction. The author will draw upon Japanese jurisprudence, in order to consider whether a valuable lesson might be offered to the UK jurisdiction.     

网络诽谤行为的法律规制及其完善

利用互联网全新媒体实施诽谤与传统诽谤相比较具有新的特点,寻求网络言论自由与保护名誉权、隐私权的平衡成为了网络时代更为突出的问题．网络诽谤责任主体具有多元性。网络诽谤法律规制应从适度区分公众人物与非公众人物,赋予新闻媒体的合理报道权,适度规定网络服务提供者的相应责任,实际损害赔偿、精神损害赔偿与惩罚性赔偿相结合等角度加以完善．     

论互联网时代诽谤罪的公诉范围

我国刑法对诽谤罪采取自诉为主、公诉为补充的双轨制模式。由于刑法但书“严重危害社会秩序和国家利益”的公诉依据具有模糊性,同时司法解释本身缺乏解释力和可操作性,存在同义解释、近义解释等问题,加剧了公诉诽谤罪和其他罪名之间的冲突和竞合,特别是当被害人为地方领导干部时,诽谤罪的公诉权在实务中存在被滥用风险,部分限制公诉权的要件在实务中被淡化甚至忽略。从相对狭义的角度看,“严重危害社会秩序和国家利益”只有在行为人对侵犯个体法益具备主观故意,但对侵犯社会法益或国家法益不具备主观故意(或无法证明其具备故意)的情形下,才有其独特的法律适用价值并不与刑法其他罪名相冲突。为妥善处理和平衡诽谤犯罪中惩治犯罪和保障人权的关系,适应互联网时代的内外部变化,建议通过修改我国刑法,将诽谤罪区分为情节不严重、情节严重、情节特别严重的三种形态,为充分保障宪法权利,情节不严重的不作为犯罪处罚;为充分保障自诉权,情节严重的为绝对告诉乃论;为依法惩治犯罪,对符合特定形式要件和实质要件,情节特别严重的诽谤犯罪可以依法公诉,以维护网络信息秩序。     

Clashing conceptions of press duties: Public journalists and the courts

This article bridges the growing, but controversial, public journalism movement with First Amendment jurisprudence and libel law. It examines whether the movement finds support in laws that affect the press and, in particular, in court‐created defenses and privileges that protect journalists in modern defamation law. Do defenses that safeguard journalists in their traditional routines as fact gatherers and reporters also protect them in the kinds of roles and duties envisioned by public journalism advocates? Furthermore, has the United States Supreme Court, in non‐defamation cases involving the First Amendment, expressed concern for protecting what might be called the “public journalism functions” of the press? Does the Court create a different image for the press than the one envisioned by public journalism advocates? This article addresses these questions. It ultimately concludes that public journalists and courts have two very different conceptions about the role that journalists play in a democracy.     

“Error But Without Malice” in Defamation of Public Officials: The Value of Free Expression in International Human Rights Law

Government officials in various parts of the world use defamation to silence critics, but defamation liability may curtail freedom of expression on topics of public interest and undermine human rights generally. Article 19 of the International Covenant on Civil and Political Rights guarantees freedom of expression unless a state can show need to protect individual reputation and acts proportionally. In its adjudication of complaints for violations of Article 19, and in its General Comment 34, the United Nations Human Rights Committee has crafted the principle that defamation liability may not be imposed if an erroneous statement about a public official was made in “error but without malice.” Although soft law, General Comment 34 represents the committee's most compelling articulation of the values animating freedom of expression in international human rights law, and chief among the values is the role played by free expression to promote realization of all human rights.     

"For the Protection of the Reputation or Rights of Others ": The European Court of Human Rights' Interpretation of the Defamation Exception in Article 10(2)

Legal observers have praised the European Court of Human Rights' defamation case law as an example to be emulated in international law. Yet scholars who have studied the court's defamation jurisprudence have focused primarily on a handful of the court's noteworthy cases. A broader examination of the court's entire body of defamation case law provides a complete picture of the court's defamation jurisprudence. The ECHR's defamation case law has come increasingly to mirror principles of common law and United States First Amendment law. Although the ECHR has produced some commendable judgments protecting speech critical of governments and politicians, it has developed a hierarchy of protected expression that leaves other expression vulnerable to restriction. Further, even though the court has condemned several specific criminal defamation prosecutions, it has failed to strike down, and has expressly condoned, criminal defamation in general.     

Culture and Consumerism: Citizenship, Public Service Broadcasting and the BBC's Fair Trading Obligations

The authors examine the future of public service broadcasting in the context of current debates about, and commercial pressures on, the BBC. They describe the European Community constraints on public service broadcasting and the need for a clearer definition of such broadcasting, noting that such a definition is not currently provided in UK law. The BBC is also under increasing pressure from fair trading rules derived from competition law, some of which may weaken its ability to deliver its public service mission. Original research undertaken within the BBC suggests that external and internal pressures have undermined the conditions for a distinctive public service output, although there remains the basis for such an output within the culture of programme-making. The authors develop theoretical bases for a redefinition of public service broadcasting centred on the principles of citizenship, universality and quality in relation to services and output, and examine the implications for the structure of channels in the digital era. Finally, the authors discuss the legal and regulatory implications of their analysis in the context of the Government's Communications White Paper, arguing that the social and cultural purposes of public service broadcasting must not be made subordinate to competition-based concerns.     

网络诽谤犯罪立案管辖之困境与价值抉择

本文对网络诽谤犯罪案件载体与形式进行了重新评估,并解释了刑法扩张的合理性,试图从诽谤犯罪规制的价值选择出发,考察域外法制,平衡社会公益与公民权利,平衡言论自由与公民人格尊严,提出修正现行法律规范的建议,或加强公权力救济、强化现行法律框架下的侦查权合理运行。     

Toward Reform of Defamation Law in the British Caribbean: Efforts at Reform in the United Kingdom and Jamaica

The ongoing review of defamation laws by the Jamaican government has sharpened the focus on the need to identify appropriate standards for public officials in libel actions in light of the growing recognition of a need for transparency. Conventional wisdom speaks to the indispensable role of the media to inform the public of government activities to facilitate the democratic process. Jamaica's unique history of colonialism, underdevelopment and poverty has led to a political system based on pork barrel economics – inimical to government transparency so necessary in a democracy. This article explores how British, Caribbean and U.S. jurisdictions have sought to manage the paradigm shift between the right to reputation and the need to ensure responsible and accountable governance. The aim is to identify a path of reform for Caribbean defamation law that ensures greater public official accountability and better incorporates twenty-first century notions of democracy.     

The online defamation maze: are we finding a way out?

The main purpose of this paper is to examine the efficacy of the first decision that explored online defamation (as opposed to offline defamation) delivered by the Supreme Court of Japan. A discussion of the future implications of the case is then undertaken. The paper supports the First Instance (the Tokyo District Court) decision and its approach, and argues that such an approach might have provided greater implications for the future. The author also argues that the Tokyo District Court seems to have taken a more reflective view on the fluidity of online defamation and the nature of the online environment, and shows a degree of willingness to accept and incorporate such a nature. The author concludes that the Tokyo District Court's approach, although it could be seen as rather radical and extreme, seems to be more persuasive than that of the Supreme Court. It also submits that the court might have brought a more balanced and healthy outcome for the beneficiaries, including not only the claimants, the defendants, but also society as a whole. It is the case that innocent internet users can potentially be both the passive and active recipients of the information (i.e. comments posted on webpage). Before a detailed analysis and examination of the case is undertaken, a brief outline of how Japanese law and its jurisprudence have dealt with the traditional form of defamation (i.e. offline defamation) is provided as background.     

What Conversation? Free Speech and Defamation Law

Common rationales for free speech are offered in legal writing across many countries, even though their laws regulating speech differ markedly. This article suggests another way of thinking about speech, based on particular qualities of speech which help to explain why public speech – or at least public speech perceived as valuable for cultural, political or other purposes – is frequently thought of as a conversation. That often appears as the ideal, but a conversational conception can limit what is seen to be at stake in the control of speech. Instead of imagining public speech as open exchange that leads to agreement, here a slightly different vision is offered based more on the articulation of incommensurable world views and dissent. Implications of such an approach are considered for scholarly understanding, particularly of defamation law – an area of law commonly seen as important for the range and style of public speech.     

Corporate Chaos: The Muddled Jurisprudence of Corporate Public Figures

Public-figure determinations in libel law are enormously consequential legal decisions. The divide between public and private status for a defamation plaintiff can be – and frequently is – determinative of whether that plaintiff can succeed. Lower court rulings on how corporate plaintiffs fit into this status determination are inconsistent. Meanwhile, corporations are taking increasingly active roles in political and social controversies. This article explores the sprawling and contradictory law of corporate public figures, analyzing and critiquing lower court jurisprudence on this vital issue. The article also provides a suggested direction for clarifying the state of the law and aligning it more closely with important First Amendment values.     

An Exploratory Analysis of Florida Law Enforcement Domestic Violence Policies

The high social cost of domestic violence has caught the attention of lawmakers and criminal justice agency administrators across the country. As public awareness and concern over the incidence of domestic violence has risen, domestic violence legislation has focused on, among other things, the law enforcement response to domestic violence. The purpose of this study is to examine Florida law enforcement agency response to domestic violence by analyzing agency standard operating procedures (SOPs) across measures identified in the Florida Model Policy for Domestic Violence. Utilizing content analysis, the authors identify agency policy mandates including the number of officers responding to the scene, the use of specialized units, availability of victim advocates, and procedures for investigation.     

论中国外贸管理法的范式转换——全球治理与公共行政的视角

中国加入WTO旨在积极参与、有效利用多边贸易体制,分享国际贸易增长与世界经济发展的成果。本文从全球治理与公共行政视角出发,认为有必要从法律内容、法律功能、法律价值及法律实现等方面实现我国外贸管理法的范式转换。法律内容方面,实现以实体规则为导向到以程序规则为导向的转换;法律功能方面,实现防御型立法到防御型与进取型立法相结合的转换;法律价值方面,实现“公共利益为导向”到“以私人利益为导向”与“公共利益为导向”相结合的转换;法律实现方面,实现从“政府主导型”模式到“政府主导型”与“私人驱动型”相结合的转换。     

The future of public health law

Developments in medicine and constitutional law dictate modification of public health legislation in the United States. Traditionally overlooked by legislators, present public health laws provide inadequate decision-making criteria and inappropriate procedures for dealing with issues. Revised legislation should provide health care officials and agencies with the tools to balance individual rights against public health necessities. This Article makes four recommendations for legislative reform: (1) remove artificial legislative distinction between venereal and other communicable diseases; (2) provide criteria defining "public health necessity" to limit discretionary exercise of police power by health officials; (3) provide strong confidentiality protections in the collection and storage of public health information; (4) empower public health officials to select from a graded series of less restrictive alternatives in dealing with public health problems.     

The Protection of Reputation in Japan: A Systematic Analysis of Defamation Cases

Although Japanese defamation law has been a subject of legal interest for scholars and judges, their main focus was the defamation rules that appeared in cases publicized by legal reporters. The following study coded 232 defamation cases against the media that were decided in district courts in Japan, according to the type of database that reported the cases. Statistical results reveal that newspapers are more likely to report defamation cases than other databases because stories about defamation cases may satisfy readers' interest or because the newspaper might have been informed by plaintiffs who won their cases. The results also show that the professional status of the plaintiff is a predictor of the case outcome. Politicians and officials are less likely to win in defamation cases than are executives and criminals, and they received lower damages than athletes and entertainers.