Defamation and the Right to Freedom of Speech

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 Boehmermann 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