Libel Lawyers as Risk Counselors: Pre-publication and Pre-broadcast Review and the Social Construction of News1

American libel law presents profound dilemmas about how to provide compensation to individuals for injury to their reputation without destroying First Amendment values of free expression and unfettered public debate. This paper looks at the substantial legal costs incurred by publishers and broadcasters in defending themselves against charges of libel, the response of the courts to limit press self-censorship occasioned by the risks of libel litigation, and the perverse effect they both have on the social construction of the news. These tensions are captured in the role of the media lawyer who reviews news stories prior to publication or broadcast and advises editors about libel risks. Data are presented from interviews of 53 in-house and outside counsel who regularly review stories for newspapers, television stations and networks, magazines, and other news organizations. A paradox emerges: media lawyers, in pursuit of constitutional protections of free speech, have come to enforce responsible journalism, while subtly chilling and shaping the ways the news is told.     

The Public Participation Act: A Comprehensive Model Approach to End Strategic Lawsuits Against Public Participation in the USA

Commentators have documented the disturbing use of the courtroom to silence those who speak out on important issues. Too often, parties resort to meritless lawsuits in response to another's free expression or communication with the government. These lawsuits are called SLAPPs, or Strategic Lawsuits Against Public Participation. In the USA, they have emerged as a significant threat to the rights of expression and petition guaranteed in the First Amendment to the US Constitution. A majority of the US States have passed 'anti-SLAPP laws', but there is no uniform protection. The model legislation outlined in this paper is intended to guide those who seek uniform, comprehensive protection against SLAPPs.     

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.     

SLAPPs: Intent or Content?Anti-SLAPP Legislation Goes International

Due to the increasing interest in adopting anti-SLAPP legislation outside of the USA (where it was first implemented), the definition of what constitutes a SLAPP is being questioned. Some commentators have advanced the suggestion that, in order to account for jurisdictional differences, outside of the USA it is the motivation to intimidate or chill public speech that is the aspect of a SLAPP on which anti-SLAPP legislation must focus. However, defining SLAPPs by the initiator's alleged intent to intimidate can render anti-SLAPP legislation, in any jurisdiction, ineffective. SLAPPs should be defined by the involvement of public participation, rather than by the intent of the SLAPP plaintiff. Effective anti-SLAPP legislation employs procedural protections that are engaged once a threshold demonstration has been made that the case involves protected public interest communications. Generally, this approach is appropriate to adopt in any jurisdiction where the legislature desires to protect public interest communications.     

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.     

Tilting at Windmills: the Defamation Act 2013

In April 2013, the Defamation Act was passed, the culmination of a four‐year political campaign. The legislation is intended to ameliorate the ‘chilling effect’ of libel law on scientists, online commentators, NGOs, and others. This paper considers the main changes wrought: reform of the main common law defences, changes relevant to scientific discourse and online speech, and revisions that will impact on process. It identifies areas where there will be problems of interpretation for courts, and suggests that the Act will fail to provide clarity for publishers keen to assess the legality of their actions. The paper also contends that more attention should have been paid to remedies (in particular, the desirability of discursive remedies such as the right of reply). The question is posed whether the Act addresses the core problem with libel law: the juridification and over‐complication of public sphere disputes, and the attendant cost of embroilment in legal proceedings.     

Liberalizing British Defamation Law: A Case of Importing the First Amendment?

Regardless of whether American law tends to be too outlying to be relevant to the rest of the world, the U.S. free speech jurisprudence is more impactful than ever. Indeed, the United States remains a real-life laboratory for other countries in resolving clashes between press freedom and reputation. Jameel v. Wall Street Journal Europe and other recent English media libel cases are a good illustration. This article examines the liberalization of U.K. defamation law in connection with the U.S. actual malice rule while noting English courts' significant adoption of neutral reportage, which American courts consider to be less viable as a libel defense. The principle of functionality informs the article's analytical framework.     

Justice Brennan,Justice Harlan and New York Times co. v. Sullivan: A case study in supreme court decision making

New York Times Co. v. Sullivan is arguably the most important free speech case ever decided by the Supreme Court. This case, the Court's first substantive treatment of libel law, delineated a new approach toward the treatment of free speech. Because the Court attempts to present a unified front when it cuts broad swaths in the law, a unanimous or near‐unanimous opinion was very important in Times v. Sullivan.For a time in the deliberations, however, it appeared that Justice William Brennan would not win even a bare majority for his propositions. This article examines the deliberations in the case, providing not only a renewed understanding of the importance of Times v. Sullivan, but also giving a rare glimpse of how the Court operates and how process affects result.     

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.     

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.     

Forum Shopping and the Cyber Pamphleteer: Banamex v. Rodriguez

The Internet promised to make everyone a publisher, subject and reader, simultaneously, connecting the lonely pamphleteer to the whole world through cyber- space. That new freedom also brought the liberty to cause harm all over the world, however. When that happens, where can a victim seek redress? The threat that one-person publishing endeavors could be haled into far-flung forums to mount costly defenses against libel threatens to chill the free speech that the Internet was to deliver. Banamex v. Rodriguez pitted two muckraking journalists against a powerful Mexican banker to help begin setting the rules about where cyber pamphleteers can be called to account for what they publish. This article examines the Banamex case and its ramifications for free expression.     

Engaging with the legal profession and the provision of legal aid/assistance

The state of defamation laws within the Commonwealth poses a significant threat to the right to freedom of speech, expression and information. Within the United Kingdom there is a growing movement for the reform of the procedural aspects of libel law following several high profile cases that have brought the public’s attention to a number of problems within existing libel law. ^{1 1} Significant concern surrounded the judgment in this case and the question of costs MGN Limited v the United Kingdom – 39401/04 [2011] ECHR 66 (18 January 2011). In Jamaica, criminal defamation laws are facing reform and the recommendations for change are continuing to make their way through the legislative process. The pernicious effects of libel actions are amplified within small jurisdictions and there is a serious danger that the crippling penalties on defendants as a result of such actions ‘chill’ free speech and stifle dissent. ^{2 2}Guardian editorial, ‘Press freedom: The Singapore grip’ The Guardian (17 November 2010) <http://www.guardian.co.uk/commentisfree/2010/nov/17/press-freedom-singapore-grip> The Commonwealth Human Rights Initiative (CHRI) an independent NGO working for Human Rights in the Commonwealth, presented a paper to the 2010 Meeting of Law Ministers and Attorneys General of Small Commonwealth Jurisdictions (LMSCJ) on the human rights case for libel law reform in small jurisdictions. ^{3 3}Commonwealth Human Rights Initiative, ‘Overview of Media Freedom and Defamation: The Human Rights case for Libel Law Reforms in the Commonwealth’ (LMSCJ Paper, Commonwealth, Secretariat, Marlborough House, London). This paper was produced at the London officer of CHRI – written by Frederick Cowell with research assistance from Catherine Fischl, Alix Langrounat and Sirintiya Robberts. This is a summary of the research and the paper presented at the LMSCJ meeting. The basic findings were that the presence of criminal defamation laws on the statute books and procedural aspects of civil defamations laws posed a threat to the realisation of freedom of speech and CHRI put a series of recommendations to the delegates calling for reform in these areas.     

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.     

德国法上的意见表达和事实陈述的区分

在德国法上,将言论自由所保护的言论区分为意见表达和事实陈述,并根据二者受保护的价值基础分别提供不同程度的保护,这不仅是德国宪法处理言论自由保护问题的基本架构,而且是其他下位阶法律处理言论自由与其他权益保护之间冲突的出发点。以此区分为基础,德国民法上的名誉保护规则也基本上是按侮辱对应意见表达、诽谤对应事实陈述的方式建构起来的。     

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.     

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.     

A Key Influence on the Doctrine of Actual Malice: Justice William Brennan's Judicial Philosophy at Work in Changing the Law of Seditious Libel

Much of the scholarship on Justice William Brennan's landmark opinion in New York Times Co. v. Sullivan has focused on the actual malice doctrine and its implications. In light of the historic change in the law of seditious libel in the United States as a result of the case and the need for further exploration of the human factors behind the case, this article explains how Justice Brennan's instrumentalist judicial philosophy had an important influence on changing the course of legal protection for speech critical of the government. The article concludes that the outcome of the case probably would have differed notably if a justice with a formalist, Holmesian or natural law philosophy had authored the opinion for the Court.     

“Neutral reportage” and its second decade: A marketplace perspective

Since its inception in 1977, the neutral reportage libel defense has ridden a rocky road. While initially received optimistically by many as a sign that courts would reinforce the commitment to the wide‐open and robust debate of public issues, many courts—most notably the United States Supreme Court—have yet to adopt the doctrine. To reflect on the two decades since creation of neutral reportage, this article reviews its history—particularly over the past 10 years—and assesses its sporadic adoption from the perspective of the marketplace of ideas. It is posited that courts may be more apt to recognize and adopt the neutral reportage privilege when viewed from the position of its ability both to increase the public's knowledge of important issues and to enhance the debate surrounding those issues.     

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.     

Toward Normalization of Defamation Law: The U.K. Defamation Act of 2013 and the U.S. SPEECH Act of 2010 as Responses to the Issue of Libel Tourism

In the wake of several high-profile libel actions brought by U.S. celebrities and foreign businessmen in London because of more favorable defamation laws there, London was dubbed the “libel tourism capital of the world.” The U.S. response in 2010 was the passage of the SPEECH Act, preventing courts from enforcing libel judgments from foreign jurisdictions not providing the same level of protection as the United States. Similarly, in 2013 the United Kingdom responded to international and national criticism by passing the Defamation Act to address the loophole in its system that caused the abuse. Both acts have been criticized, the first for its aggressiveness, and the second for its conservative nature. This article examines the development of the law of defamation in the two jurisdictions and analyzes the content of both statutes, along with their criticisms, proposing international cooperation to address the issue of libel tourism.