United Kingdom Journals

American and English Libel Law - Which Approach is Best?

Michael McFall [1]

Cite as: McFall, M., 'American and English Libel Law - Which Approach is Best?' European Journal of Law and Technology, Vol.3, No. 3, 2012

Introduction

'[D]efamation is essentially an attack on reputation', by the publication of libellous statements, which identify a person or company. [2] Thus 'an action for defamation ... provides a remedy to a claimant who can prove that a publication lowers his or her reputation in the view of reasonable people.' [3] America and England have different approaches to this area of law. In fact, according to Robert Balin, 'in many ways, libel laws in the United States and England constitute mirror images of each other--with the burden of proof placed on the claimant in the United States, but on the media defendant in the United Kingdom'. [4] Their different approaches stem from how they balance the right to freedom of speech against the competing right to protection of reputation. America favours protecting free speech, whilst England favours protecting reputations. Both libel approaches have attracted criticism; America for making successful defamation suits too difficult, and England for conversely making them too easy, and enabling the proliferation of libel tourism. The issue of libel tourism has been exacerbated by the internet, in conjunction with England applying the multiple publication rule, rather than the single publication rule, like America. Internet libel has also posed the difficult question of who the plaintiff should sue; the Internet Service Provider (ISP), or the person actually behind the libellous comments? Consequently, both America and England have had to develop ways to deal with the distinct challenges raised by internet libel. However, as this article will demonstrate, America's libel law has largely dealt with the problems posed, by both traditional and internet libel, better than the corresponding English law.

The American and English Approaches to Libel

The American approach to libel is now basically governed by the First Amendment of the United States Constitution, which dictates that 'Congress shall make no law ... abridging the freedom of speech, or of the press'. [5] Yet, in the past the courts have recognised libellous words to be among the 'well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem.' [6] This view was upheld by the Court in Beauharnais v. Illinois, in which Mr. Justice Frankfurter stated that '[l]ibelous utterances are not within the area of constitutionally protected free speech'. [7] Nevertheless, the American approach to libel underwent a dramatic change in 1964, with the decision of the United States' Supreme Court in New York Times v. Sullivan, which Garrett Epps says '[e]ven at the time ... was seen as crucial for the development of a free mass media in the United States.' [8] [9] In this landmark case Justice Brennan determined that 'libel can claim no talismanic immunity from constitutional limitations.' [10] What's more, it was decided that an elected public official, when suing in defamation, must prove that a libellous 'statement was made with 'actual malice' -- that is, with knowledge that it was false or with reckless disregard of whether it was false or not.' [11] The 'actual malice' standard was subsequently expanded to include appointed public officials in Rosenblatt v. Baer, and eventually to public figures in Curtis Publishing Co. v. Butts and Associated Press v. Walker. [12] [13] Then, in Gertz v. Robert Welch Inc. the Court clarified that, unlike public officials or public figures, private individuals could secure a remedy in defamation simply by proving negligence, as opposed to actual malice, on the part of the media defendant. [14] One of the reasons behind this decision is that 'public' claimants 'have a more realistic opportunity to counteract false statements than private individuals normally enjoy.' [15] The more important reason, though, is that, unlike with private individuals, 'public officials and public figures have voluntarily exposed themselves to increased risk of injury from defamatory falsehood concerning them.' [16]

It would appear then that even though libellous statements can still fall outside the protection of the First Amendment, the situations in which they will do so has been greatly reduced by the decision in Sullivan. [17] Although, subsequent case law has sought to ensure that the 'actual malice' standard does not apply to ordinary people, but only to 'public' claimants, because they have voluntarily assumed the risk of being defamed, [18] there are, nonetheless, those who would criticise the high threshold, which must be overcome, in order to achieve a successful defamation suit in America, and the redress one receives even if they can. For example, Robin D. Barnes says that:

'[e]ven in those rare instances when a public figure clears the hurdle of demonstrating that a publisher had prior knowledge that information was false ... the ultimate penalties amount to little more than a slap on the hand.' [19]

Yet, despite the existence of those who would criticise American libel law, because of the strong protection it affords the freedom of speech, there are also those who would celebrate it for encouraging free speech. Owen Fiss, for instance, says that Sullivan [20] was one of a number of 'important free speech victories, in that an opposite result would have been a profound setback for the cause of freedom.' [21] Indeed, as the Court noted in Gertz, '[t]he First Amendment requires that we protect some falsehood in order to protect speech that matters.' [22] The American approach to defamation could therefore be seen as a way to avoid press self-censorship, and in turn the 'chilling effect' of libel on free speech.

Concerns about the 'chilling effect' of libel on free speech have recently led to some changes in the English approach to defamation, as 'English libel law is generally regarded as the most claimant-friendly in the world.' [23] Hence, in an effort to better balance the competing interests, of the right to free speech [24] and the right to protection of reputation, [25] England developed the qualified privilege defence to libel actions in Reynolds v. Times Newspapers Ltd, [26] which means 'the media can now make untrue and defamatory statements about an individual (or company) and not be obliged to make redress or suffer liability, so long as the newspaper has acted in a way which the courts consider ''responsible'.' [27] However, it is worth noting that in Reynolds [28] itself the journalism was not deemed responsible. Furthermore, it has been observed 'that the lower courts in England and Wales initially thwarted the intention behind 'Reynolds privilege' by applying it restrictively, with the consequence that it succeeded in very few cases.' [29] Nevertheless, the recent decision of the House of Lords in Jameel v Wall Street Journal Europe Sprl [30] did allow the press to successfully employ the defence of qualified privilege, for what was considered responsible journalism. Still, by comparison to the actual malice standard in America, the qualified privilege defence, even in those rare instances when it can be employed, requires much less negligence on the part of the defendant, in order for the defamation suit to be successful. Some would argue this is not a bad thing, because the 'American courts have adopted ... a fundamentalist approach to the value of freedom of expression', [31] but surely the sheer number of libel tourists England attracts indicates it has defended the right to protection of reputation too much at the expense of the right to free speech.

Libel Tourism and the Impact of Internet Libel

The relative lack of free speech protection in England, by comparison to America, in defamation cases, is one of the reasons '[h]ighprofile plaintiffs flock to London ... to take advantage of English common law principles that preclude American media defendants from invoking the First Amendment media protections they would receive in US courts'. [32] The forum (non) coveniens doctrine is meant to stop claimants from bringing cases before the English courts, because 'in order to establish jurisdiction a tort committed in the jurisdiction must be a real and substantial one'. [33] But in libel cases the problem is that the mere fact that the libellous article has been viewed in England, in some form, is quite often enough to make England the forum conveniens. This problem has only been worsened by both the internet, which makes worldwide publication very easy, and England maintaining the multiple publication rule, which was established over one hundred and sixty years ago in Duke of Brunswick v. Harmer. [34]

Berezovsky v Michaels [35] provides an excellent example of the multiple publication rule in effect. It involved two Russian businessmen, Mr. Berezovsky and Mr.Glouchkov, who were accused in an issue of Forbes magazine of being criminals. 'Sales of that issue of the magazine amounted to approximately 785,000 in the United States and Canada, 1,900 in England and Wales and 13 in Russia.' [36] The defendants accepted that the claimants had an action in England, but contended that 'the correct approach is to treat the entire publication ... as if it gives rise to one cause of action and to ask whether it has been clearly proved that this action is best tried in England.' [37] Given then that the sales figures for that issue lay predominantly in North America the defendants were suggesting that the best forum for this action would not be England. Nonetheless, the Court judged that, in spite of the vast majority of the sales taking place in North America, the sale of the magazine in England was to be treated as a separate publication giving rise to a separate defamation suit, due to the multiple publication rule, or as the Court put it, 'the long established principle of English libel law that each publication is a separate tort.' [38]

However, one matter that was not addressed in this case was the internet publications of the Forbes' article, as Lord Steyn reasoned that '[h]aving come to a clear conclusion without reference to the availability of the article on the Internet it is unnecessary to discuss it in this case.' [39] Instead the issue of jurisdiction, in relation to internet publications, was addressed in Lennox Lewis v. King. [40] In this case, the Court determined that in deciding upon the most appropriate forum in an Internet case the court will have more discretion, because if the publisher chooses a worldwide medium on which to disseminate information, then they must have understood the inherent possibility that it may be read, and hence published, in jurisdictions it was not intentionally directed towards. [41]

This differs drastically to the American approach to internet jurisdictional issues, as illustrated by Young v New Haven Advocate. [42] Young, a Virginia prison warden, claimed that two Connecticut newspapers had published defamatory articles relating to him. Young alleged that as the articles were posted online, and thus accessible to Virginia readers, he had been libelled in Virginia. Nevertheless, the Court decided that in order for the plaintiff to establish jurisdiction in Virginia 'the newspapers must, through the internet postings, manifest an intent to target and focus on Virginia readers.' [43] Clearly then, the American courts have recognised that as something posted on the internet is available practically anywhere, it would be unfair to allow jurisdiction to be established on this basis if the defendant did not specifically aim the defamatory article at the jurisdiction in question. In England, on the other hand, jurisdiction can usually be asserted on the basis of the most tenuous of links. For example, in Mahfouz v. Ehrenfeld two well known Saudi businessmen, Khalid Bin Mahfouz and his son, Sultan Bin Mahfouz (SBM) sought a libel action in England against Rachel Ehrenfeld and Bonus Book Incorporated, an American publishing company, for allegedly defamatory remarks made about them in the book 'Funding Evil, How Terrorism is Financed - And How to Stop it'. [44] Rachel Ehrenfeld was the author of the book, and Bonus Books Incorporated its publisher. Yet, although neither the plaintiffs nor the defendants were residents of England, the plaintiffs were still able to establish jurisdiction in England, on the basis of their business connections there, as this meant they had a reputation to protect, and because 23 copies of the book were sold within the jurisdiction, and chapter one was available online. A default judgement was obtained ordering Ehrenfeld to pay costs and an injunction was issued prohibiting the publication of the book in England.

Following this case, though, Ehrenfeld launched a suit in New York against Bin Mahfouz, in order to obtain 'a declaration that, under federal and New York law, Mahfouz could not prevail on a libel claim against her based upon the statements at issue in the English action and that the English default judgment was unenforceable in the United States.' [45] [46] Nonetheless, the Court decided that Mahfouz lacked sufficient connections with New York to establish jurisdiction there. The fact then that Mahfouz had been able to establish jurisdiction in England, in spite of his very tenuous connections there, but Ehrenfeld had been unable to subject him to New York jurisdiction, prompted a rethink of the enforcement of foreign libel judgements. New York, for example, introduced the New York Libel Terrorism Protection Act, which means that foreign libel judgements will not be recognised unless freedom of speech was protected as much as it would be under the American or New York Constitution. [47] So significant is the issue of libel tourism, however, that this sort of State legislation was considered insufficient, leading to the national Securing the Protection of our Enduring and Established Constitutional Heritage (SPEECH) Act being introduced to stop the enforcement of foreign libel judgements, which are incompatible with the First Amendment. [48]

Nevertheless, even in the face of legislation being introduced, which amounts to condemnation of its libel law, England had done nothing to discourage libel tourism. Indeed, if anything England has encouraged libel tourism. For instance, when confronted with the question of whether to apply the multiple publication rule to internet publications, in Loutchansky v Times Newspapers Ltd, the English Court of Appeal determined 'there was no justification for departing from the rule'. [49] This rationale is not particularly convincing, though, as the application of the multiple publication rule to internet publications means that just because the defamatory article was read online an action in defamation can possibly be brought, and any subsequent time it is read gives rise to the potential for a fresh defamation action. Considering the near impossibility of controlling the circulation of material, once it is posted online, this approach can act as a deterrent from even posting material online, out of fear of the litany of potential defamation actions which may ensue. Therefore, this rule can very easily have an overly 'chilling effect' on free speech, which means there was certainly justification for not applying this rule to internet cases, especially when the alternative, the single publication rule, which America has adopted, does not present these problems. 'A single publication rule provides that a cause of action accrues when material is first published, not when it is read or subsequently accessed online'. [50]

Yet, some proponents of the multiple publication rule may argue that any contentions it can be abused were disproved byJameel (Yousef) v. Dow Jones & Co. Inc., [51] in which the Court found that because only five individuals had accessed the defamatory internet article in the United Kingdom 'that publication within the jurisdiction was minimal and did not amount to a real and substantial tort'. [52] Consequently, the claimant was unable to establish jurisdiction in England. But, according to Robert Balin the facts in this case were 'so singular that any broader application of the decision appears doubtful.' [53] This would appear true, given the decision in Mardas v New York Times Co. [54] This case involved a man, John Alexis Mardas, claiming that the New York Times Co. had published defamatory articles in England pertaining to him, alleging he spread rumours, which contributed to the Beatles disbanding. Although, the New York Times indicated there had only been 177 hard copies of the paper sold, and just four downloads of the article from the internet, Eady J, nonetheless, found that if Mr. Mardas could prove that he was 'libelled here, and a real and substantial tort thus committed within the jurisdiction, he is entitled to bring proceedings', [55] despite the fact the article had been more widely distributed in France and America, and the claimant had not sought to instigate defamation proceedings in either of these jurisdictions. [56] Eady J indicated this was perfectly acceptable, as he believed the claimant was entitled:

'to claim whatever is appropriate compensation and vindication in respect of the smaller local publication here' [57] but 'cannot ... claim damages here in respect of (say) publications in the United States.' [58]

Hence, Eady J thought there was no real problem with libel tourism, because even if a claimant could establish jurisdiction they were only going to receive damages proportionate to the defamation. Still, this fails to take account of the realistic proposition that Mr. Mardas may well have received no damages in the US, which was perhaps the more appropriate forum for this case.

The ISP or the John Doe - Who to Sue?

However, even though America and England may disagree over how to balance the right to free speech and protecting someone's reputation, jurisdictional issues and consequently libel tourism, they have both found themselves trying to cope with the ever increasing amount of internet defamation. A particularly pertinent issue is who a claimant should sue in internet libel cases; the ISP or the person who actually made the libellous comment?

The most important case concerning ISP liability in England is Godfrey v. Demon Internet Ltd. [59] The plaintiff in this case, Dr Laurence Godfrey, brought defamation proceedings against the defendants, the ISP, Demon Internet Ltd, on the basis they had acted as the publisher of comments libellous of him. Demon Internet Ltd in turn argued that they were not the publishers of the libellous comments, but that if they were they were still not liable, as they could avail themselves of the defence under s.1(1) of the Defamation Act 1996. Nevertheless, the Court determined that once the ISP had become aware of the defamatory posting, and chose not to delete it, but to instead let it remain available on the server, until it was automatically deleted 10 days later, they could no longer use the defence available under s.1(1) of the Defamation Act 1996, because even though they were not its publisher, they had violated s.1(1)(c) of the Defamation Act 1996, as they did have reason to believe what they did, or rather what they didn't do in this case, contributed to its publication. Therefore, the Court relied upon the precedent set in Byrne v. Deane that publication is not necessarily a positive act, because in Byrne it had been determined that the two owners of a golf club 'by allowing the defamatory statement to remain on the wall of the club were taking part in the publication of it.' [60] Thus, in England it would seem that if an ISP removes a defamatory internet posting, once they become aware of it, then generally they will not be held liable. Therefore, a claimant may try to sue the person who actually made the defamatory remark. The problem with this is that frequently the individual is anonymous, meaning the claimant must discover the identity of the John Doe. An ISP may give up the identity of the John Doe easily enough, but if not the claimant can obtain a Norwich Pharmacal Order to force the ISP to provide this information. Yet, even when their identity is revealed these John Does are most likely not going to be able to afford a lot in terms of damages, so there may be no point, other than one of principle, in suing them.

Equally, in America 'plaintiffs would prefer to sue defendants with deeper pockets than John Does typically have', [61] which is one of the reasons, 'ISPs are logical targets for defamation suits.' [62] But, s.230(c)(1) of the Communications Decency Act, which America passed in order to deal with ISP liability, states that '[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.' [63] The subsequent interpretation of this act has meant that in America ISPs are virtually immune from defamation suits, as Zeran v. America Online, Inc. [64] demonstrates. In this case, the claimant, Kenneth Zeran, was suing the defendant, America Online, Inc. (AOL), on the basis that after being given notice they were making defamatory material accessible they 'refused to post retractions of those messages, and failed to screen for similar postings thereafter.' [65] Mr. Zeran was aware of the practical immunity that s.230(c)(1) creates for ISPs as publishers of defamatory material. Hence, this is why he argued AOL was liable, as a distributor of the material. The Court found, though, that 'distributor liability ... is merely a subset, or a species, of publisher liability, and is therefore also foreclosed by § 230', [66] which meant AOL was not liable. 'SinceZeran, American Courts have generally followed the decision and classified ISPs as conduits'. [67] As a consequence of this defamation claimants in America appear to have little other option than to find out the identity of the John Doe and sue them, in spite of the fact the whole experience may ultimately only serve to make a point, and prove rather fruitless in terms of damages. Perhaps though it is better to give ISPs this sort of immunity, even if it means John Does must be pursued for damages, as it could otherwise result in the English situation, where failure to remove a statement can result in the ISP being liable, just because the claimant informs them he considers it defamatory. This mere threat of liability can cause ISPs to remove even non-defamatory material and so have a chilling effect on free speech.

Conclusion

Defamation law it would seem is basically a matter of balancing the right to freedom of expression against the need to protect the reputation of individuals. Although, no system is perfect, the 'actual malice' standard adopted by the American Courts with regards to the defamation claims of public officials and public figures seems sensible, as these figures, as the American Courts have rightly emphasised, voluntarily assumed this risk. [68] By comparison the negligence standard it has adopted for private individuals is easier to satisfy, but still provides a threshold that should dispense with the unworthy defamation claims. Furthermore, American libel law by placing the burden of proof on the claimant, rather than presuming defamation, like the English system does, means that free speech will not be overly 'chilled'. Moreover, the single publication rule the American Courts have imposed upon internet libel is much fairer than the English multiple publication rule, as it is unreasonable to make someone account for every so-called publication of their article on the internet, when the propagation of information via this medium is virtually impossible to control. This difficulty in controlling information on the internet is also one reason it is best to again follow the American approach, and give ISPs a virtual immunity from defamation actions, as they may otherwise be inundated with such actions, and thus tend towards the side of caution and remove defamatory and non-defamatory material alike, and in the process 'chill' free speech. This higher threshold demanded in American libel actions may seem excessively protective of free speech at the expense of reputations, but really it has struck the best balance possible, and in so doing avoided the ridiculous situation of libel tourism, which England is now confronted with.

Bibliography

Books:

Garrett Epps (ed), The First Amendment, Freedom of the Press: Its Constitutional History and the Contemporary Debate (Bill of Rights Series, 1 ^st edn Prometheus Books, New York 2008).

Howard Davis, Human Rights Law: Directions (2^nd Edn OUP, New York 2009).

Owen M. Fiss, The Irony of Free Speech (Harvard University Press, Cambridge, Massachusetts 1998).

Robin D. Barnes, Outrageous Invasions: Celebrities' Private Lives, Media and the Law (OUP, New York 2010).

Journals:

Alastair Mullis, 'Something Rotten in the State of English Libel Law? A Rejoinder to the Clamour for Reform of Defamation' (2009) 14(6) Communication Law 173.

Berkley D. Sells, 'Recent Developments in Internet Defamation Law' (2006) 5(1) Journal of International Trade Law & Policy 1.

Brid Jordan, ''Existing defamation law needs to be updated so that it is fit for the modern age'' - the Government's consultation on the multiple publication rule' (2010) 21(2) Entertainment Law Review 41.

Jason Bosland, 'Republication of Defamation Under the Doctrine of Reportage - The Evolution of Common Law Qualified Privilege in England and Wales' (2011) 31(1) Oxford Journal of Legal Studies 89.

Jonathan Coad, 'The Irrelevance of Truth and Falsity in the New Law of Defamation' (2002) 13(5) Entertainment Law Review 95.

Lyrissa Barnett Lidsky, 'John Doe: Defamation & Discourse in Cyberspace' (February, 2000) 49(4) Duke Law Journal 855.

Robert Balin, Laura Handman and Erin Reid, 'Libel Tourism and the Duke's Manservant - An American Perspective' (2009) 3 European Human Rights Law Review 303.

Samtani Anil, 'Cyberspace and the Law of Defamation: Developing a Workable Model' (2001) 7(7) Computer and Telecommunications Law Review 175.

Trevor C. Hartley, ''Libel Tourism'' and the Conflict of Laws' (2010) 59(1) International & Comparative Law Quarterly 25.

Cases:

Beauharnais v. Illinois , 343 U.S. 250 (1952) 266.

Berezovsky v. Michaels [2000] 1 WLR 1004.

Byrne v. Deane [1937] 1 K.B. 818, 818-819 (CA).

Chaplinsky v. New Hampshire , 315 U.S. 568, 571-572 (1942).

Curtis Publishing Co. v. Butts and Associated Press v. Walker , 388 U.S. 130 (1967)

Duke of Brunswick v. Harmer (1849) 14 Q.B. 185 (QB)

Ehrenfeld v Mahfouz 9 NY 3d 501; 881 NE 2d 830; 851 NYS 2d 381 (2007)

Gertz v. Robert Welch Inc , 418 U.S. 323 (1974)

Godfrey v. Demon Internet Ltd . [2001] QB 201.

Jameel v Wall Street Journal Europe Sprl [2007] 1 AC 359 (HL).

Jameel (Yousef) v. Dow Jones & Co. Inc. [2005] QB 946 (CA).

Lennox Lewis v. King [2004] EWCA Civ 1329.

Loutchansky v Times Newspapers Ltd [2002] QB 783, 784 (Nos 2-5) (CA).

Mahfouz v. Ehrenfeld [2005] EWHC 1156 (QB).

Mardas v New York Times Co . [2009] EMLR 8.

New York Times v. Sullivan , 376 U.S. 254 (1964).

Pfeifer v. Austria [2009] 48 EHRR 8.

Reynolds v. Times Newspapers Ltd . [2001] 2 AC 127 (HL).

Rosenblatt v. Baer , 383 U.S. 75 (1966).

Wolston v. Reader's Digest Ass'n., Inc ., 443 U.S. 157 (1979).

Young v New Haven Advocate, 315 F.3d 256 (4th Cir. 2002).

Zeran v. America Online, Inc ., 129 F. 3d 327 (1997).

Legislation:

Communications Decency Act of 1996, Pub. L. No. 104-104, title V, 110 Stat. 133, 133-143 (codified at 47 U.S.C.)

Defamation Act 1996

New York Libel Terrorism Protection Act , Laws of New York, 2008, Chapter 66 (effective April 28, 2008), codified at C.P.L.R. §§ 302(d) and 5304(b)(8)

Securing the Protection of our Enduring and Established Constitutional Heritage Act of 2010, Pub. L. No. 111-223, (effective August 10, 2010), H.R. 2765 (111^th Congress)

The European Convention on Human Rights 1950 (effective September 3, 1953)