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THE GLOBALIZATION OF DEFAMATION
Russell L. Weaver*
David F. Partlett**
“Globalization” has been a catchy by-word for years.1 News reports trumpet the
globalization and internationalization of the economy, and the reports are reinforced by
companies that are outsourcing factories and jobs to developing countries. While the trend
towards globalization has producer consumer benefits in the form of cheaper prices, and gains
from trade, is a source of angst as jobs are threatened, industries restructured, and the vulnerable
exposed to impersonal markets. Most recently, we have witnessed complaints about the safety of
products imported into the United States. Newspapers have been filled with reports regarding
lead paint in our children’s toys, and salmonella and other bacteria in our food. The U.S.
Presidential primary races have revolved around contrasting arguments about the impact of
globalization.
“Globalization” is not a term that one would usually mention in relation to the tort of
defamation. Defamation law is rooted in the community in which an individual dwelt and
garnered a reputation. Before the industrial age, the focus was limited and, prior to the printing
press, its reach and its roots were very parochial. In the small village reputation is bound up with
honor, and one’s ability to live and thrive turned on the protection of both. Even with greater
*
Professor of Law & Distinguished University Scholar, University of Louisville, Louis
D. Brandeis School of Law.
**
1
Dean and Asa Griggs Candler Professor of Law, Emory University School of Law.
Paul Schiff Berman, Global Legal Pluralism, 80 S. Calif. L. Rev. 1155 (2007) (pointing to the reality of
legal pluralism and suggesting reconciliation in hybrid spaces through legal tolerance.)
mobility, status remained, especially as the written word extended the geographic compass. The
courts became the forum for that protection when self-help, as through dueling, became socially
disruptive.2 Originally it was a jurisdiction of the local seigniorial courts. The ecclesiastical
courts took jurisdiction over slander, regarding it as sin and punishing it with penance. Church
and state competed, finally fixing liability in the Common law courts.1 Finally with the invention
of the printing press and the consequent threat to the state, the Court of Star Chamber punished
the crime of libel to suppress seditious libels.2 For centuries, defamation law was actionable per
se and thus decidedly pro-plaintiff with limited defenses available to a defamation defendant.
Moreover, if a defendant failed to prevail in a defamation suit, the defendant might be hit with a
high level of costs, including attorneys fees. The net effect was that potential defamation
defendants, as rational actors, were slow to publish. Some newspapers (especially in London)
would, for example, hire “night barristers” to read over proposed copy and help advise them
regarding potential liabilities. Books on political and public figures in Australia would likewise
be vetted by London barristers for potential libels.3
Just as the printing press revolutionized the law of defamation in its era, the information
revolution through the internet will radically impact the form and substance of defamation in the
2
[Dueling was to long subsist in a status society. This is a reason why in the Southern states of the United
States, where social status was critical, dueling was an accepted social practice. Recall the famous duel between
Alexander Hamilton and Aaron Burr. CITE RECENT STUDIES OF DUELLING.]
1
See Ogden v Turner, 87 Eng. Rep. 862 (K.B. 1703); Davies v Gardiner, 79 Eng. Rep.
1155 (K.B. 1593).
2
The outstanding historical treatment is R. Helmholz, Introduction, Select Cases on
Defamation to 1600 (Selden Society, 1985).
3
PAUL BARRY, THE RISE AND FALL OF KERRY PACKER (2002) was so vetted.
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21st century. The tort of defamation has been, and will continue to be, affected by the trend
towards globalization. Just as commerce now flows relatively freely across international borders,
so that no country is an “island unto itself,” the same is true for defamation and defamation
litigation. Citizenship has become fluid as persons move globally.4 The press and electronic
media have international audiences, the messages are instantaneous, and the opinions are
cacophonous. For many Americans, in particular, the developments are troublesome.5
In this short article, we trace the globalization trends in defamation law and defamation
litigation. In addition, we examine how modern trends might fundamentally alter the nature of
defamation litigation, and hence impact those increasing numbers of publishers sending
information beyond national borders. We do conclude that speech will not be unduly chilled in
the reality of a world where access is freer. We first demonstrate that the courts throughout the
Western World have over the past ten to fifteen years attended to the value of free speech. The
balance in defamation doctrine has been recalibrated toward more freedom in political speech.
We then review the likely impact of judgments that may be adverse to the wider conception of
free speech in the American law. We submit that because of enforcement obstacles, it is unlikely
that any frost will descend on the exercise of free speech. Lastly, we argue that the
4 Take, for example, Mr. Gutnick, the central player in the foundational case laying bare
the implications of defamation in the internet age. Mr. Gutnick is a man of considerable wealth
and is as well known and familiar in New York City and Jerusalem as he is in Melbourne. See
William T. Mayton, Birthright Citizenship and the Civic Minimum, Georgetown Immigration
Law Journal, Vol 22, Winter 2008, No. 2.
5 Broyde’s op. ed.; Rachel Donadio, Libel Without Borders, N.Y.T. Book Review Oct.
7, 2007 p. 43. These writers were concerned about the impact of the litigation brought by Sheik
Khalid bin Mahfouz. The byline in the latter essay is “Is English Libel Law Chilling Writers on
This Side of the Atlantic Too?” Rosen, Let’s Go Libel, New Yorker, 2007. Blandly noted by the
Economist Magazine “Sheikh it all about: How far can a Saudi Sheikh use English law against an
American Author, The Economist, Nov 10, 2007. Ms. Ehrenfeld is reported to have said:
“English law does not apply here since 1776, when we won our independence.”
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democratization in the venues for speech on the internet will enliven speech on a global basis.
Even the garrisoned and isolated generals in Myanmar (Burma) are subject to the barbs of
worldwide comment and the powerful juggernaut of the Chinese state must deal with the Dalai
Lama in relation to events in remote Tibet. Technology has the potential to transform our
conceptions of free speech.
I. THE GLOBALIZATION OF DEFAMATION STANDARDS
The first major “global” trend is doctrinal in nature. Free speech in the political setting
has been closely tied to a free and democratic state. Beginning with the first amendment
jurisprudence the idea of free speech has gained purchase in western democracy.6 Moreover,
defamation law has yielded to more speech-protective standards. For centuries, the law of
defamation was decidedly pro-plaintiff, and pursued the objective of compensating individuals
whose reputations were injured by defamatory statements. In the clash of values, reputational
protection was given greater weight than freedom of expression.7 As a result, at common law,
defamation defendants were usually forced to bear the burden of proving that their statements
6 See European Convention on Human Rights. Refer to Ronald J. Krotoszynski, Jr., The First
Amendment in Cross-Cultural Perspective: A Comparative Legal Analysis of the Freedom of
Speech; and Eric Barendt, Freedom of Speech, Oxford Univ Press (2005).
7 See Gertz v. Welch, 418 U.S. 323 (1974); see also RUSSELL L. WEAVER, ANDREW KENYON,
CLIVE C.P. WALKER & DAVID F. PARTLETT, THE RIGHT TO SPEAK ILL: DEFAMATION, REPUTATION
& FREE SPEECH 4-15 (2006) (hereafter The Right to Speak Ill). On the definition of reputation,
see Lawrence McNamara, Reputation and Defamation (2008), arguing that reputation is a
community’s moral judgment. See also Daniel Solove, The Futre of Reputation: Gossip, Rumor,
and Privacy on the Internet (2007) (pointing to the changing conception of reputation in the age
of the internet), and Jonathan Zittrain, The Future of the Internet (2008), pp 216-221 describing
markets for reputation).
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were true, and generally had only a limited range of defenses at their disposal.8 Publishers
published at their peril, and sometimes faced the prospect of large damage awards, particularly in
the context of political speech where the distribution was wide, the audience curious, and the
impact significant.
The common law tradition began to give way in 1964 when the United States Supreme
Court rendered its landmark decision in New York Times Co. v. Sullivan.9 In Sullivan, the Court
articulated broad constitutional protections for expression and limited the ability of public
officials to recover for defamation. Sullivan was a bit quirky because it focused on the status of
the plaintiff rather than on the “public interest” in receiving or hearing the expression.3 As a
result, public officials could not recover absent a showing by “clear and convincing” evidence
that defendant published the statement with “actual malice.” In other words, plaintiff must show
that defendant “knew” that the allegedly defamatory statement was untrue, or acted with
“reckless disregard” as to whether it was true or false.
Sullivan and its progeny also provided other protections for defamation plaintiffs. Those
cases shifted the burden of proof from the defendant (who was generally required to prove the
truth of his assertions at common law) to plaintiffs.10 In a suit by a public official, the plaintiff
was required to show that defendant made the statement with “knowledge that it was false or
8 Id. at 17-34.
9 376 U.S. 264 (1964).
3
This demonstrates a weakness of broad law reform by courts. The posture of the case dictated the cast of the law
going forward. We suggest that focus on the “public interest” would have led to a more rational body of law.
10 See Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986).
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with reckless disregard of whether it was false or not.”11 In addition, the Court held that
defamation plaintiffs must prove their cases with “convincing clarity,”12 and that a reviewing
court must independently examine the entire record to assure that “the judgment does not
constitute a forbidden intrusion on the field of free expression.”13 Finally, in later cases, the
Court extended the actual malice standard to so-called “public figures” – individuals who do not
hold public office, but are prominently placed in the public eye.14
In subsequent decisions, the Court has moved, altering its defamation standard to focus
more on the “public interest.” This shift did not come in a straight line. Indeed, within the
Court, there has been controversy about whether the courts should focus more directly on the
“public interest” rather than on the status of the defamation plaintiff. In Rosenbloom v.
Metromedia, Inc.,15 a plurality of the Court suggested that the existence of constitutional
protections should turn on whether the publication is related to the “public interest”: “[W]e think
the time has come forthrightly to announce that the determinant whether the First Amendment
applies to state libel actions is whether the utterance involved concerns an issue of public or
11 Id.
12 See Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 514 (1984)
(suggesting that prior cases have held that “a First Amendment precondition to liability in a
defamation case [is] that an appellate court ‘must exercise independent judgment and determine
whether the record establishes actual malice with convincing clarity.’” (quoting Miller v. Fenton,
474 U.S. , 104, 110 (1985)).
13 Id.
14 See Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967); Associated Press v. Walker, 388 U.S.
130 (1967).
15 403 U.S. 29 (1971).
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general concern, albeit leaving the delineation of the reach of that term to future cases....”16 The
difficulty with the decision was that it produced five separate opinions, and no opinion
commanded a majority of the Court. In an opinion for a plurality of the Court, Justice Brennan
argued that the actual malice standard should extend to defamation of private individuals when
the statements concerned matters of general or public interest
But, in Gertz v. Robert Welch, Inc.17 the Court flatly rejected the focus on public interest:
The extension of the New York Times test proposed by the Rosenbloom plurality would
abridge this legitimate state interest to a degree that we find unacceptable. And it would
occasion [the] difficulty of forcing [judges] to decide [which] publications address issues
of "general or public interest" and which do not.... We doubt the wisdom of committing
this task to the conscience of judges. [The] "public or general interest" test for
determining the applicability of the New York Times standard to private defamation
actions inadequately serves both of the competing values at stake....18
Even though Gertz rejected the public interest standard, that test began to color the
Court’s perception of the actual malice standard and its future extensions and applications of that
standard. In Gertz itself, the Court continued to focus on the status of the defamation plaintiff,
and held that private defamation plaintiffs could take advantage of lower proof requirements than
might be imposed on public officials or on public figures. However, in the Court’s subsequent
16 Id., at 45.
17 418 U.S. 323 (1974).
18 Id., at 345; see also Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 789 (1986); Time,
Inc. v. Firestone, 424 U.S. 448, 454 (1976);
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decision in Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.,19 the Court distinguished
between private individuals involved in matters of purely private concern, and private individuals
involved in matters of more public concern.20 When a case involved a matter of purely private
concern, a lower proof standard could be imposed.21
The principles in N.Y. Times gained little traction elsewhere through much of the
twentieth century. Most Commonwealth countries steadfastly clung to the notion that
defamation is a necessary protection “lest good men fall prey to foul rumor.”22 However, in
recent years, even in Commonwealth countries, with their faith in the Common Law tradition to
weigh and protect rights, the balance has been shifting in favor of free expression. The trend
began in the Pacific Rim. In Lange v. Australian Broadcasting Corporation,23 Australia’s High
Court extended common law qualified privilege to cover matters related to the conduct of
19 472 U.S. 749 (1985).
20 The case involved a credit reporting agency that inaccurately reported that plaintiff’s business was in
bankruptcy. In justifying its decision, the Court stated that “[it] is speech on ‘matters of public concern’ that
is ‘at the heart of the First Amendment’s protection.’ [In] contrast, speech on matters of purely private
concern is of less First Amendment concern. [T]he role of the Constitution in regulating state libel law is far
more limited when the concerns that activated New York Times and Gertz are absent. In such a case, ‘[t]here is
no threat to the free and robust debate of public issues; there is no potential interference with a meaningful
dialogue of ideas concerning self-government; and there is no threat of liability causing a reaction of selfcensorship by the press . . . .’” Id., at 760.
21 See id. (“In light of the reduced constitutional value of speech involving no matters of public concern,
we hold that the state interest adequately supports awards of presumed and punitive damages — even absent
a showing of ‘actual malice.’”).
22 NORMAN L. ROSENBERG, PROTECTING THE BEST MEN: AN INTERPRETIVE HISTORY OF THE
LAW OF LIBEL (1986), which traces the colonial roots of this notion. He notes that President
Richard Nixon in 1974 was concerned that libel laws following Sullivan would discourage "good
people" from running for "public office."
23 (1997) 189 C.L.R. 520, 521 (Austl.).
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governmental affairs.24 However, the Court maintained the burden of proof on the defendant,
and required adherence to a “reasonableness” standard.25 New Zealand followed suit in Lange v.
Atkinson.26 In that case, New Zealand’s Court of Appeal held that qualified privilege included
speech about politicians and candidates.27
Britain joined the qualified privilege approach in 1999. In that year, the House of Lords
decided Reynolds v. Times Newspapers28 and expanded common-law qualified privilege to
provide special protection to the English media for reporting on matters of “public interest.” In
deciding whether a publication qualifies under the Reynolds defense, a reviewing court must
consider a variety of factors, including its “public importance, seriousness, urgency, overall tone
and whether it included the claimant’s position – as well as matters about the information’s
source, such as what steps had been taken to verify it.”29 Interestingly, the claim of qualified
privilege failed on the facts of Reynolds. More recently, the House of Lords considered the
24 For a fuller examination of this decision, and its effect on Australian law, see Russell L.
Weaver & David F. Partlett, Defamation, the Media and Free Speech: Australia’s Experiment
with Expanded Qualified Privilege, 36 G.W.I.L. REV. 377 (2004) (hereafter “Weaver &
Partlett”).
25 See The Right to Speak Ill, supra, at 82-87.
26 [1997] 2 N.Z.L.R. 22, 27 (H.C.).
27 Id. (“generally-published statements made about the actions and qualities of those currently or
formerly elected to Parliament and those with immediate aspirations to be members, so far as
those actions and qualities directly affect or affected their capacity (including their personal
ability and willingness) to meet their public responsibilities.”).
28 [2001] 2. A.C. 127 (H.L.). See PATRICK MILMO AND W V H ROGERS (EDS), GATLEY ON LIBEL
AND SLANDER, ch. 14 (10th ed., London: Sweet & Maxwell 2004)
29 The Right to Speak Ill, supra, at 103.
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“Reynolds privilege” in Jameel v. Wall Street Journal Europe SPRL.30 Their Lordships
emphasized the “liberalizing intention” of Reynolds, in finding that deference ought to be given
to “professional judgment of an editor or journalist.”31 The speeches of the Law Lords stress the
flexibility that is to be accorded to responsible journalism, and that was exemplified by the Wall
Street Journal.32 Failure to obtain the target’s comments prior to publication or disclosure of
names that were subject to state secrets would not abrogate from the overall responsibility of this
reporting, given the context.
In the final analysis, although the four countries have taken different approaches, the
trend clearly shows movement away from the common law tradition. One country (the United
States) has taken a constitutional approach to change whereas three other countries (England,
Australia and New Zealand) have taken common law qualified privilege approaches (albeit using
different standards). Nevertheless, the stated principle in each case involved an extension of free
speech protections to defamatory speech.
At this point, it is difficult to accurately assess the impact of all of these new standards
and approaches. At this point, the Sullivan standard has been tested for more than four decades,
and we have clear evidence suggesting that it has had a profound impact on defamation litigation
in the United States.33 While the U.S. media is “not oblivious to the possibility of defamation
30
[2006] UKHL44]
31
Per Lord Bingham, per Lord Hoffman: “Reynolds has had little impact upon the way the law is
applied at first instance. It is therefore necessary to restate the principles.”
32
The House of Lords refers with approval to Bonnick v Morris [2003] HS300 (Privy Council)]
33 Id., at 183-200.
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suits or the possibility of adverse judgments, [it] is far less concerned about this possibility than
their English counterparts.”34 In the post-Sullivan era, there are virtually no defamation suits by
public officials against the media, and defamation suits by public figures are relatively rare.35 In
addition, Sullivan has generally put a significant damper on defamation litigation by other
plaintiffs.36
By contrast, prior to the recent extensions of common law qualified privilege, the
evidence strongly suggested that both English and Australian defamation law have been slow to
provide much “breathing space” for speech, and that English and Australian media outlets were
deeply concerned about the potential for defamation liability.37 Recent extensions of common
law qualified privilege yet to take root in Australia or England, where journalistic practice may
lag behind the prompting of the highest courts. In Australia, the Lange standard has had very
little impact on defamation litigation.38 The media continues to make publication decisions using
the same approach, and under the same criteria, as before Lange was rendered.39 Similarly, in
England, the impact of the extended defense of qualified privilege is difficult to gauge. Although
34 Id. at 184. Note David Logan’s analysis of plaintiff’s lack of success in actions against the
media. David A. Logan, Libel Law in the Trenches: Reflections on Current Data on Libel
Litigation, 87 VA. L. REV. 503, 539 (2001). But see Rodney A. Smolla, Let the Author Beware:
The Rejuvenation of the American Law of Libel, 132 U. Pa. L. Rev. 1 (1983) (discussing the
uptick in libel suits against the media).
35 Id. at 183-200.
36 Id.
37 See Russell L. Weaver & Geoffrey J.G. Bennett, Is the New York Times Actual Malice
Standard Really Necessary? A Comparative Perspective, 53 LA. L. REV. 1153 (1993).
38 See The Right to Speak Ill, supra, at 204-14.
39 Id.
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there is some evidence suggesting that Reynolds, and subsequent cases that have begun to
crystallize the privilege, may be at the threshold of influencing defamation litigation in England,
it is too early to ground definite conclusions.40
Nevertheless, whether the recent reforms have produced as much protection as
anticipated, the global trends are solidly in favor of providing greater protection for freedom of
expression. Moreover, it is important to recognize that other Commonwealth (and nonCommonwealth) countries are moving to provide greater protections against defamation liability
as well.41
II. GLOBALIZATION AND THE ABILITY TO SUE
The second major trend relates directly to the globalization of defamation litigation.
There are two major trends and they cut in quite inconsistent directions. One involves the reach
of jurisdiction in defamation cases. The other involves a limit on the ability of defamation
plaintiffs to enforce defamation judgments in other countries.
Publications on the Internet know no national boundaries. In the well-known Australian
High Court decision of Dow Jones & Co. Inc. v. Gutnick,42 the consequences of different national
40
Id. at .215-242
41
See Raymond E. Brown, The Law of Defamation in Canada 1096 (2d ed. 1999).
)
42
[2002] 210 C.L.R. 575 (Austl.),
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regimes are dramatically highlighted. Dow Jones published Barron’s on-line. In an October
2000 Barron’s article, Joseph Gutnick contended his reputation had been besmirched. Gutnick
sued Dow Jones in the Australia state of Victoria. In answering the issue of the place of
publication the Australian Court entered, as it acknowledged, a problematical arena. The answer
given was that the article was published in Victoria and not solely in New Jersey under the single
publication rule as Dow Jones had argued. The defendant was not able to argue the application
of New York Times v. Sullivan in order to put plaintiff to the burden of showing actual malice.
The law of Victoria applied as the place of publication. Note that under Australian law each
download of the article in Victoria was a publication in that jurisdiction, constituting a cause of
action on each occasion. Dow Jones’ pleas of impracticality and free speech restriction were
considered by the High Court but could not alter what was established law. Justice Kirby
bemoaned the inability of the common law to craft a solution finding unappealing the “idea that
this Court should solve the present problem by reference to judicial remarks in England in a case
decided more than a hundred and fifty years ago involving the conduct of a manservant of a
Duke, dispatched to procure a back issue to a newspaper of minuscule circulation.”43
Gutnick’s implications for traditional media, as well as for electronic media, appear
potentially breathtaking in this era of global publishing. A media conglomerate who
communicates from a city in the United States (e.g., New York) could be subjected to defamation
liability all over the world. Since the Internet makes it quite easy for individuals from any part of
the world to access and download media being “broadcast” from a single U.S. city, it is possible
to hold such broadcasters liable. A media outlet that allows its content to be downloaded from
43 The case that he referred to was Duke of Brunswick v. Hamer (1849) 14 Q.B. 185, 117 E.R.
75).
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distant places, could be sued in any of those places, although as we point out, incentives may be
few where the damages are small.
Gutnick is not alone. Take the House of Lords decision in Berezovksy v Michaels,4 which
accepted that English courts had jurisdiction and applied English law for a Barron’s article on the
Russian politician and businessman Boris Berezovsky. Of the Barron’s circulation, 98.9% was
sold in the U.S.A., Canada, or to overseas U.S. forces. The English circulation was a mere 2,000
copes. The English Law Commission in Defamation and the Internet: A Preliminary
Investigation (2002) noted the issues and saw that a solution would require “a greater
harmonization of the substantive law of defamation.” Another salvo in the Internet defamation
war was fired by the English Court of Appeal in Lewis v. King,44 a case involving an Internet
defamation dispute regarding several postings made to boxing websites concerning the actions of
Don King. In particular, one posting accused Mr. King of anti-Semitic comments, which Mr.
King claimed defamed his reputation amongst the Jewish community in England. The alleged
defamatory statements central to the English case came (1) from a piece written in the United
States by the New York attorney representing the defendants and posted on the Internet, and (2)
from an interview given by that same attorney to a website based in California where the attorney
had posted the complaint in the dispute days before. The Court of Appeal ruled that Don King
could sue in England for his harm suffered there. Even though all of the factual events leading
up to the English action occurred in the United States, and even though the applicable United
States’ law would likely have doomed a charge of action under the public figure doctrine in
Sullivan, the English Court of Appeal was untroubled by the lower court’s refusal to dismiss
4
_______ [2000] 2 All E.R. 986.
44 [2004] E.W.C.A. Civ. 1329 (C.A. 2004).
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King’s case. The English Court, refusing to accept the “single publication rule,” found that the
case could proceed on the basis of King’s reputational harm in England. Lord Hoffman in
Berezovsky was untroubled by the action in English courts. His Lordship recognized that the
damages award “would not even be enforceable against the defendants in the United States” and
The common sense of the matter is that he [Berezovsky] wants the verdict of an English court that he
has been acquitted of the allegations in the article, for use wherever in the world his business may take
him. He does not want to sue in the United States because he considers that New York Times v. Sullivan,
376 U.S. 254 (1964) makes it too likely that he will lose. He does not want to sue in Russia for the
unusual reason that other people might think it was too likely that he would win. He says that success in
the Russian courts would not be adequate to vindicate his reputation because it might be attributed to his
corrupt influence over the Russian judiciary . . . The plaintiffs are forum shoppers in the most literal
sense. They have weighed up the advantages to them of the various jurisdictions that might be available
and decided that England is the best place in which to vindicate their international reputations. They
want English law, English judicial integrity and the international publicity which would attend success
5
in an English libel action.
Decisions like Gutnick could have a leveling effect on defamation law. Although United
States courts that strike the balance more in favor of reputation, is speech chilled?45 Some
evidence suggests that some U.S. broadcast and print media soften stories for the international
market.46 Contrariwise, more recent evidence, drawn from actual journalistic practice, suggests
that publishers are not overly inhibited by the possibility of trans-jurisdictional liability. Because
of the global nature of broadcast, satellite and cable communications, trans-jurisdictional
communications have existed for some time. Our interviews revealed that U.S. journalists who
publish and broadcast overseas seem to be somewhat more conservative than those who publish
in the U.S., but perhaps not decidedly so. As a result, foreign laws do not unduly affect U.S.
5
Berezovsky v. Michaels, [2000] 1 W.L.R. 1004 (H.L) (1023-24).
(U.K.)
45 See Samuel Fifer & Michael Sachs, The Price of International Free Speech: Nations Deal
with Defamation on the Internet, 8 DEPAUL-LCA J. ART & ENT. L. 1 (1997) ("Persons who
allege defamation based on on-line speech can potentially choose any nation in the world in
which to sue, and can base their choice on the forum providing the most favorable law.").
46 See Weaver & Bennett, supra note 1, at 1188.
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coverage.47 For example, the Washington Post and New York Times management use highly
similar procedures and criteria for overseas publications and broadcasts as they employ for the
domestic market.48 In only rare instance do they soften a story for the overseas market.49
Interestingly, even though the British press was intimidated by Robert Maxwell, neither the Post
nor the Times was threatened by Maxwell regarding their coverage of him,50 and both treated
him no differently than they treated anyone else.51 Cable News Network (CNN) was a little more
cautious about its coverage. Again, its primary concern was with journalistic accuracy and with
"getting it right."52 But, at the same time, because CNN broadcasts constantly to all parts of the
globe, it is more cautious about the threat of defamation suits,53 and is much more likely to have
lawyers routinely engage in pre-publication review of its broadcasts.54 This conservatism
suggests that trans-jurisdictional exposure can inhibit speech.55 But the possibility for transjurisdictional liability may be more than offset by practical considerations. Even if a defamation
plaintiff can sue for allegedly defamatory material in a pro-plaintiff jurisdiction, it may be
difficult to achieve an effective remedy. The damages are likely to be light where the plaintiff is
47 Freeman Interview, supra note 169; Werner Interview, supra note 167.
48 Id.
49 Freeman Interview, supra note 169.
50 Id.
51 Id.
52 Weiss Interview, supra note 170.
53 Id.
54 Id.
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not as famous and his reputation but lightly touched. And United States jurisdictions have
demonstrated a strong disinclination to enforce these judgments. The Internet age provides one
great advantage, publication in far-flung places requires few real assets located in these
jurisdictions. When plaintiffs, armed with a foreign judgment, turn to United States Courts, they
immediately face first amendment considerations.56 For example, in Matusevitch v. Telnikoff,57 a
U.S. court refused to enforce a British defamation judgment on the basis that the suit involved
protected speech, and that enforcement of the British judgment would violate the First
Amendment to the U.S. Constitution (as well as U.S. public policy).58 In other words, if a
foreign defamation plaintiff wishes to enforce a foreign defamation judgment in a U.S. court
against a public official, a public figure, or a private individual involved in maters of public
interest, the plaintiff will be forced to show that the foreign judgment was rendered under
standards consistent with the U.S. rules applicable to that type of defamation plaintiff. In the
case of British, Australian and New Zealand plaintiffs, it is impossible to satisfy that standard for
judgments obtained in their own countries. Even though the recent extensions of qualified
common law privilege move the law of those countries closer to the law of the United States,
there is still a considerable perceived gulf between the constitutionally imposed actual malice
standard applied in Sullivan and the common law qualified privilege extensions. Legal cultures
55 In this regard, it is interesting to note the refusal of a New York court to enforce a British libel
judgment. See 13 J. MEDIA L. 205 (1992).
56 See Sarl Louis Feraud International v. Viewfinder, Inc., 406 F. Supp.2d 274 (S.D.N.Y. 2005).
57 877 F.Supp. 1 (D.C. Cir. 1995).
58 See also Abdullah v. Sheridan Square Press, Inc., No. 93 Civ. 2515, 1994 WL 419847
(S.D.N.Y. May 4, 1994) (refusing to enforce a British defamation judgment as "antithetical" to
the First Amendment).
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are still disparate, and United States courts nowadays are quite unused to seeing public figures
and officials mulct in damages.59
The United States decisions suggest that foreign defamation plaintiffs will be faced with
difficult choice of forum issues. A non-U.S. plaintiff may sue in his home country, but needs to
make sure that the judgment will be enforceable. In other words, in order for a foreign action to
be successful, plaintiff must ensure that he can find sufficient assets outside the United States so
that the judgment can be enforced. If not, the plaintiff will probably be forced to choose between
foregoing litigation or bringing the litigation in the United States under more restrictive
defamation standards. Moreover, an unenforced judgment is unlikely to deter the defendant from
punishing further allegations.
If a defamation plaintiff decides to sue in the United States, rather than in his home
country, he will find a dramatically different (and, in many respects, unfamiliar and hostile)
environment for the litigation. First, unlike many foreign countries, there is no organized bar of
lawyers who handle defamation cases in the United States.60 In some respects, this fact, by itself,
is both telling and noteworthy. In the United States, which is regarded by much of the rest of the
world as one of the more litigious societies, especially on issues of tort, few if any plaintiffs’
lawyers specialize in defamation.61 Second (and this, undoubtedly, explains the absence of a
plaintiff’s bar), it makes no economic sense for a U.S. tort lawyer to handle a defamation case.
No sensible attorney would take a defamation case on a contingency fee basis.62 The chances of
59 See Logan, supra.
60 See The Right to Speak Ill, supra, at 250-51.
61 See id.
62 Id.
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obtaining a defamation verdict, and having it sustained on appeal, are too low.63 For the same
reasons, few U.S. defamation plaintiffs are willing to finance defamation litigation out of their
own pockets on a per-hour basis.64 Third, unlike most Commonwealth jurisdictions, a prevailing
plaintiff in a U.S. defamation case is extremely unlikely to recover an award of “costs” in the
sense of attorneys fees.65 Finally, the chances of ultimate success in the litigation are too low to
justify the expense.66
So, while decisions like Gutnick threaten to revolutionize jurisdictional issues in
defamation litigation, the impact of that decision may be limited to defendants who have
substantial assets located outside the United States.
Despite the paltry threat, recent commentary in American newspapers has been highly
critical of the roaming writ of defamation plaintiffs. Most venom has been poured on the libel
actions brought by Sheikh Khalid Salim A bin Mahfouz. In a book by Rachel Ehrenfeld,
“Finding Evil: How Terrorism is Financed – and How to Stop It,” Mr. bin Mahfouz was linked
with Al Qaeda. The book was published by Bonus Books in the United States. Mr. bin Mahfouz
was granted a default judgment after Ms. Ehrenfeld failed to appear in the English High Court.
Subsequently Ms. Ehrenfeld sought a declaratory judgment that the judgment was not
enforceable in the United States, although bin Mahfouz had not sought to enforce it.67 The New
63 Id.
64 Id.
65 Id.
66 Id.
67
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York Court of Appeals refused to make the declaration.68 More recently, Cambridge University
Press agreed to pulp all unsold copies of “Alms for Jihad” by Burr and Collins, after bin
Mahfouz again brought litigation pointing to defamatory portions of the book, This spate of
books that relate to financing of terrorism are published in a highly charged atmosphere post
9/11. In light of the publications and their defamatory matter that was not challenged as being
true, it is hard to see what the English courts could have done otherwise. Some have asserted
that the threat of law suits will limit the range of information being received in the U.K.69 This is
doubtful. Even in the world before the internet, the English Court’s injunction against a
loquacious former MI5 spy in his book “Spycatcher” as revealing state secrets in breach of
confidence, did not effectively preclude that book’s availability to curious British readers. This
in fact formed the basis of the Australia and New Zealand court’s refusal to grant injunctions: the
information was in the public domain.70 And, of course, as witnessed by “Alms for Jihad,” a
defamation action may give a healthy burst of publicity to an academic book of narrow public
Ehrenfeld v. bin Mahfouz (SDNY2006). The Court distinguished Yahoo! Inc. v. La Ligue
Contre Le Racisme et L’Antisemitisme, 433 F.3d 1199 (9th Cir. 2006), wherein the California
Court was entitled to assert jurisdiction under the California long-arm statute.
68 Id., and see Raymond W. Beauchamp, England’s Chilling Forecast: The Case for
Granting Declaratory Relief to Prevent English Defamation Actions from Chilling American
Speech, 74 FORDHAM. L. REV. 3073 (2006). A fortiori, no declaratory judgment will be granted
on the mere threat of libel action in England: Dow Jones & Co., Inc. v. Harrods, Ltd., 237
F.Supp.2d 394, 413, 446, judgment affirmed 346 F.3d 357 (2d Cir.2003).
69
Heather Maly, Publish at Your Own Risk or Don’t Publish at All: Forum Shopping Trends in
Libel Litigation Leave the First Amendment Unguaranteed, 14 J.L. & POLY 883, 934 (2006).
70
Attorney General v. Guardian Newspapers (No. 2) [1990] 109 (H.L.)(U.K.), Attorney-General
(U.K.) v. Heinemann Publishers (Australian) Pty Ltd. (1988) 165 C.L.R. 30 (HCA) (Australia);
Attorney-General (U.K.) v. Wellington Newspapers Ltd [1988] I.N.Z.L.R. 129 (New Zealand).
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appeal. Mr. bin Mahfouz may have scored a pyrrhic victory with his zealous litigation.71
Nevertheless, the threat has had sufficient resonance to draw forth legislative champions
sufficient to float bills in Congress to direct American courts to “not recognize or enforce a
foreign judgment concerning defamation unless the domestic court determines that the foreign
judgment is consistent with the first amendment to the Constitution of the United States.”6
The importance of context should be recognized. The bin Mahfouz litigation has taken
place at a time of reaction to the terrorist attacks on 9/11. Assertions that information is being
repressed about these events is likely to draw an immediate and emotional reaction. At the same
time, there has been a drive for purity of American law when interpreting the open-textured
provisions of the Constitution. A battle has raged about the legitimacy of using foreign sources
of law and policy to understand the interpretative task. That battle has been sufficiently public
and vexed to color opinion on the very different plane of defamation judgments and their
enforcement.
III. THE INTERNET, ELECTRONIC COMMUNICATIONS, AND THE GLOBAL REVOLUTION
The third major trend in defamation, and perhaps the most important trend, relates to the
democratization of communication speech technology.72 Recent decades have brought with them
a virtual explosion in the types and sophistication of speech technology. This trend threatens to
71
cf. Mr. Maxwell, who had greater in terrorem power to chill publication. The power of libel
actions to act in terrorem is limited as demonstrated in the “McLibel” litigation. McDonalds’
trade suffered as a result of its aggressive litigation.
6
[HR.______]
72 See Jack M. Balkin, Digital Speech and Democratic Culture: A Theory of Freedom of
Expression for the Information Society, 79 N.Y.U. L. REV. 1 (2004).
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minimize the tort of defamation and make it more difficult to vindicate reputation through the
legal process.
A. THE “DEMOCRATIZATION” OF SPEECH TECHNOLOGY
The history of speech communication is intricately intertwined with the development of
technology. Prior to Johannes Gutenburg’s development of the printing press in 1436,73 citizens
had limited means at their disposal for communicating with each other. The cheapest method
involved oral methods of communication. But oral methods were an extraordinarily ineffective
means of reaching mass audiences. Of course, communications could be reduced to written text
and distributed. However, prior to the invention of the printing press, written texts could only be
produced slowly and laboriously by hand. The printing press was revolutionary because it
allowed people to disseminate their ideas far more widely and effectively.
Since the development of the printing press, modern humans have witnessed a virtual
explosion in the quantity of speech technologies. In the Nineteenth Century, telegraph lines
made communication much easier and quicker. Then, in the early part of the Twentieth Century,
the development of the telegraph and of broadcast technology (in particular, radio and television)
similarly revolutionized communications technology.
However, recent decades have brought with them a virtual revolution in speech
technology. Traditional printing presses and broadcast technology have been virtually
overwhelmed (although not necessarily rendered obsolete) by the development of an array of new
73
Johannes Guttenberg of Mainz, Germany, created the first printing press when he
devised a system of movable and removable type face. When a page was set, it could be used to
produce multiple copies of the same printed text.
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speech technologies. In addition to the Internet, other developments include the growth of cable
television, satellite communications, and cell phones which now come with text messaging and
an array of other content.
These new technologies have not only revolutionized speech communication, but have
redefined the nature of communication in important respects. The dominant feature of modern
communications is “democratic nature.” In other words, these technologies are available very
inexpensively, and therefore enable mass participation in speech. In this respect, modern
technologies are decidedly different than earlier speech technologies. Printing presses are
expensive to purchase, and therefore were not readily available to all. While someone who did
not own a press could pay a press owner to publish a text, the costs (in terms of printing and
distribution) could be substantial. With broadcast technology, the barriers to entry were even
higher. Because of a limited number of air waves, and therefore a limited number of broadcast
licenses, not everyone could hold a broadcast license. While non-license holders could purchase
air time from license holders, the cost was prohibitive for many.
With the Internet, as well as with other modern speech technologies (e.g., text
messaging), the barriers to entry and access are extraordinarily low. For one who wants to
communicate via the Internet, a computer and Internet access can be purchased relatively
cheaply. Those who cannot afford to own their own computers, or to pay for Internet access may
gain Internet access cheaply through an Internet café or for free through a public library. As a
result, virtually anyone can gain Internet access in one form or another. Moreover, anyone who
can access the Internet (or, for that matter, a cell phone and text messaging system) can
broadcast information to people around the world through web sites, chat rooms, e-mails, list
services (which retransmit e-mails to everyone on the list), news groups, and the World Wide
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Web. . The net effect is that hundreds of millions of people now have access to modern speech
technology, and that number is expected to grow dramatically in the coming years.74
Increasingly, in recent years, U.S. political candidates have relied on the internet to raise funds
and communicate their message, and individuals have used the internet to impact the political
process.
B. DEFAMATION LITIGATION AGAINST NON-MEDIA DEFENDANTS
As Internet traffic increases, it is difficult to know how the Internet will affect defamation
standards. One thing that might happen is that the Internet will help break down differences
between countries in terms of their defamation standards. Internet communications cross
jurisdictional boundaries so that a defamation defendant who resides in a very pro-defendant
jurisdiction (i.e., the U.S.) may transmit information into a pro-plaintiff jurisdiction. If the
Internet defendant can be made to answer in the pro-plaintiff jurisdiction, there is a very real risk
of incurring liability. As a result, in communicating on the Internet, potential defendants may
restrict their speech so as to conform to the laws of the most restrictive jurisdiction to which they
transmit information.
This is particularly acute where state policies are at loggerheads. For
example, privacy protection in Europe is more extensive than in the United States. This exposes
United States actors to significant liability in Europe. At this level state instrumentalities may
74 See Reno v. Am. Civil Liberties Union, 521 U.S. 844, 850 (1997) (discussing how nearly forty
million people were using the Internet in 1997, and suggesting that approximately 200 million
are expected to do so by 1999. The Court estimated that the number of host computers
(computers that store information and relay communications) increased from about 300 in 1981
to approximately 9,400,000 by the time of the trial in 1996. Forty percent of these host
computers were located outside the U.S.). Witness the recent Australian election and aspects of
the U.S. Presidential race that rely on the Internet. Note the financing aspect.
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intercede to negotiate compromise.7 The stakes are high as the ability of entities to transact
business may be inhibited.
But, in an Internet era, the tort of defamation may be less valuable to plaintiffs than it was
in earlier periods. For one thing, a plaintiff’s hope for a pecuniary recovery, and the potentially
chilling effect which comes from a large pecuniary award, may be decidedly lower in the Internet
era. In an age of newspaper or broadcast communication, a defamed individual usually had a
“deep pocket” to sue. If the individual defamer cannot pay the award, it is quite possible (if not
likely) that a newspaper, radio station or television station will have aired the defamatory
material, and the newspaper, radio or television can be sued in its own right. By contrast, in an
era of relatively open communication over the Internet, there is an increasingly likelihood that
there will be no large media outlet involved in the communication. In addition, there is a much
greater likelihood that the defamer will not be a person of means. Whether studies of the
broadcast and print media will apply to Internet communications is far from clear. Indeed, if the
Internet has a leveling effect on defamation, it might have the opposite effect: it may make
individuals feel more free to communicate information. In theory, an Internet defamation
plaintiff located in a pro-plaintiff jurisdiction (i.e., Britain) can bring an action against a
defendant who transmits from a pro-defendant jurisdiction (i.e., the U.S.) in the pro-plaintiff
jurisdiction. In reality, practical considerations may make such trans-jurisdictional litigation
unrealistic. The most noteworthy aspect of the Internet is its democratic nature. Prices for
personal computers have been falling, and anyone with a personal computer, a modem, and an
Internet hookup can gain access to the Internet. Those who cannot afford even this basic
7
Reference to restrictive European privacy requirements. Negotiations with the F.T.C. on application of the privacy
provisions regarding transactions. See also European penalties for dissemination of Nazi propaganda from U.S.
based data bank. Yahoo! Inc. 433 F.3d 1199 (9th Cir. 2006)
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equipment can gain access through an employer, a local library, or a "cybercafé." Once someone
gains access to the Internet, it is relatively easy and inexpensive to communicate information
across jurisdictional boundaries. From a defamation perspective, this makes trans-jurisdictional
defamation suits more problematic. While it may be worthwhile to bring a trans-jurisdictional
suit against a large media conglomerate which has assets all over the world, it may not be
financially worthwhile to pursue defendants with few assets, especially defendants who reside in
other countries.
In addition, the chances of obtaining an injunction prohibiting defamatory speech are
much lower. Much will depend on where the defamer is located. For example, in the United
States, there is a very strong prohibition against the issuance of prior restraints.75 As a result, if
an Australian or New Zealand plaintiff is upset regarding material being published in the United
States over the Internet, there would be very little chance of obtaining an injunction prohibiting
the publication.76 A similar presumption against injunctions prevails in both Australia and
England as well.
From a defamation perspective, this makes trans-jurisdictional defamation suits more
problematic. While it may be worthwhile to sue a large corporation with assets all over the
world, it may not be financially worthwhile to pursue defendants with fewer assets, especially
defendants who reside in other countries. And since assets are mobile or can be held outside the
media’s corporate form, it is likely that these will be persons of straw. The cost of the litigation,
75 See Near v. Minnesota, 283 U.S. 697 (1931).
76
This was established long ago in Bonnard v. Perryman, [1891] 2 Ch. 269.
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by itself, might be prohibitive. Moreover, unless the defendant has substantial assets, satisfaction
of any judgment may be difficult or impossible.
The other major difficulty is that even a successful suit might not terminate the
defamation. Suppose, for example, that a small group of dissidents live in the United States, and
are determined to publish allegations against the government of their home country.8 Perhaps
powerful plaintiffs could co-op the government to regulate. Even if the defamed governmental
officials had the financial wherewithal to sue one dissident, and even if they gained a recovery,
there is nothing to prevent a second dissident (or, for that matter, a third, fourth, fifth or sixth)
from publishing similar allegations on his computer. Is it realistic to think that the defamed
officials will bring multiple U.S. suits against the dissidents? Moreover, even if the defamed
officials were willing to sue, what is to prevent the dissidents from publishing their allegations
through an "anonymous remailer" (which strips all identifying material off a communication)?77
Ultimately, the practicalities of such trans-jurisdictional litigation are likely to overwhelm
potential plaintiffs.
Of course, some defamation defendants will be wealthy and it may be worthwhile to sue
them. For example, it might be possible (and profitable) to sue ISPs like America Online or
CompuServe.78 In theory, traditional defamation theory allows recovery against anyone who
8
This is a common occurrence in democratic western nations where the free press is used by groups who
have been exiled by, or have fled, repressive regimes. If the “bad press” rises to a high level, that traduced
government may turn to diplomatic pressure or work within the structure of the sheltering government to undermine
the dissident group.
77
On the right to speak anonymously see Lyrissa Barnett Lidsley and Thomas F. Cotter,
Authorship, Audiences, and Anonymous Speech, 82 NOTRE DAME L. REV. 1537 (2007).
78 See James B. Speta, Book Review: CYBER RIGHTS: DEFENDING FREE SPEECH IN THE DIGITAL
AGE, 2 GREEN BAG 227 (1999).
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publishes defamatory material.79 The difficulty is that the laws of some countries provide that
book vendors and news sellers cannot be held liable if they do not have actual knowledge of the
defamatory statements being made on their system.80 Since many Internet service providers
(ISPs) are like book vendors and news sellers in that they exercise little content control, recovery
against them may be difficult.81 Even if an ISP does exercise some content control over the
communication, recovery may be difficult. In the U.S., the Communications Decency Act
purports to exempt such providers from defamation liability: "[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."82 So, the possibility of recovery against an
Internet provider seems remote, at least in the U.S.83
In the republishing context the usual tactic is to put the secondary publisher on notice of
the defamatory content of the publication. Thus to warn those in the pipeline of distribution will
effectively half the wider distribution of the defamatory article. In the Internet, one could put the
ISP on notice. However, that would be effective only if the same defamatory material was to be
79 Stratton Oakmont, Inc. v. Prodigy Services Co., 23 Media L. Rep. 1794 (N.Y.Sup.Ct. 1995).
80 Id.
81
Carafano v. Metrosplash.com, Inc., 339 F.3d 1119 (9th Civ. 2003) (finding that statutory
immunity should be given to computer matching service for a false and hurtful profile) cf. Batzel
v. Smith, 333 F.3d 1018 (9th Cir. 2003) (immunity maintained provided the ISP reasonably
understands that the original source intended the content to be published on the Internet)
82 42 U.S.C. 230(c)(1).
83 See Zeran v. America Online, 958 F. Supp. 1124 (E.D. Va. 1997), aff'd, 129 F.2d 327 (4th
Cir. 1997), cert. denied, 118 S. Ct. 2341 (1998); Cubby v. CompuServe, 776 F. Supp. 135
(S.D.N.Y. 1991).
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broadcast, as if the target had notice that the material was about to be broadcast. Both are
unlikely. For the former, the material is sent electronically in an instant; for the latter it is most
unlikely that the publisher would tip his hand, and for the allegedly traduced official information
about all the ISPs would have to be available.
Of course, a given country might choose to apply different defamation rules to ISPs.
Indeed, a country that wishes to repress defamatory speech may view impose liability as a means
of gaining control. Of course, even if the law of a particular jurisdiction allows recovery against
an ISP, it may be difficult or impossible to enforce sue the ISP if it does business in a prodefendant jurisdiction. As a matter of jurisdiction, a defamation plaintiff may be able to sue the
ISP in a foreign jurisdiction and to obtain recovery there. However, enforcement of that
judgment may be difficult unless the defendant has sufficient assets in the foreign jurisdiction. In
the U.S., for example, the First Amendment to the U.S. Constitution makes it difficult to enforce
defamation judgments obtained in other countries. As noted, U.S. courts have refused to enforce
English defamation judgments on the basis that the suit involved protected speech, and that
enforcement of the English judgment would violate the policies that undergird the First
Amendment to the U.S. Constitution.9 So, although a defamation plaintiff may be able to sue a
defendant in another jurisdiction, recovery of the judgment may be difficult unless the
defendant's assets can be found in a country which provides defamation defendants with fewer
protections.
9
See also Abdullah v. Sheridan Square Press, Inc., No. 93 Civ. 2515, 1994 WL 419847 (S.D.N.Y. May 4, 1994)
(refusing to enforce a British defamation judgment as “antithetical” to the First Amendment); Desai v. Hersh, 719
F.Supp. 670 (N.D. Ill. 1989) (refusing to apply Indian defamation law in a U.S. proceeding); Bachchan v. India
Abroad Publications Inc., 154 Mis.2d 288, 585 N.Y.S.2d 661 (Sup.Ct.1992) (similar); Ellis v. Time, 26 Media L.
Rep. 1225 (D.D.C. 1997). But cf. Paul Berman, id., at p. 1234 (arguing that the enforcement would not amount to
state action, and the policy ought not usually preclude enforcement of judgments; criticizing Telnikoff, as an example
of U.S. courts forcing U.S. policy onto English courts legitimately seized with jurisdiction).
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C. DEFAMATION AND CRITICISM OF GOVERNMENT
Globalization of the internet will reduce government’s ability to repress criticism. Recall
that technology caused government disquiet when the printing press allowed an unprecedented
volume of critical material to circulate. Government’s response was the prosecution of seditious
libel created by England’s Star Chamber in1606 in the case of de Libellis Famosis,84 That crime
made it a punishable offense to criticize the government or governmental officials (and, initially,
the clergy as well).85 The crime was premised on the notion that criticism of the government can
breed disrespect for governmental as well as for clerical authority. Moreover, since truthful
criticism might breed disrespect as effectively as untruthful criticism, truth was not a defense in a
seditious libel prosecution. Indeed, because the common law assumed that truthful criticisms
were potentially more damaging than false criticisms, truthful criticisms were punished more
severely.10
Even though the crime of seditious libel has been abolished in many countries, including
the United States,86 it is not uncommon in some countries for politicians to pursue their critics
84 77 Eng.Rep. 250 (Star Chamber 1606).
85 See William T. Mayton, Seditious Libel and the Lost Guarantee of a Freedom of Expression,
84 COLUM. L. REV. 91, 98 (1984).
10
The centrality of governmental criticism is attested to in New York Times v Sullivan,
and in Derbyshire
County Council v. Times Newspaper [1993] A.C. 534. Cf. Ian Loveland, Defamation of “Government”: Taking
Lessons for America? 14 Legal Stud. 206 (1994). Much of the debate regarding free speech concerns its extension
to speech in the non-political sphere. Is the exercise of the right to free speech part of the individual’s right of selfactualization? This calls for clarification about the foundation of the right. See Ronald J. Krotoszynski, Jr., The
First Amendment in Cross-Cultural Perspective: A Comparative Legal Analysis of the Freedom of Speech. As the
right evolves, courts will focus on this question to give bounds to the right.
86 See Garrison v. Louisiana, 379 U.S. 64 (1964). But see Ron Krotoszynski and Clint
Carpenter, The Return of Seditious Libel, ___ U.C.L.A. L. REV. ___ (2008) (arguing that
restrictions on assembly have infringed first amendment rights under the Petition Clause).
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through the tort of defamation. In Australia, for example, there are numerous examples of
politicians bringing or threatening defamation actions. In Commonwealth jurisdictions, in which
a prevailing plaintiff can recover costs (defined broadly to include attorneys fees), the possibility
of a defamation action can serve as a significant restraint on those who would criticize the
government. With the shift in legal doctrine such actions should be discouraged. But even
more, the internet will open up criticism.
Today, dissidents who want to transmit allegedly defamatory information to their home
country can easily do so through the Internet, and can do so at distance.11 Even if the defamed
governmental officials can sue one dissident, and even if they gain a recovery, the defendant may
be impecunious (or relatively so) so that the plaintiff gains little. Indeed, a relatively
sophisticated plaintiff may transmit information through anonymous remailers which strip all
identifying marks off the original communication so that it is difficult or impossible to identify
the source of the defamation. The bottom line is that, for a government that actively tries to
control the flow of information about itself, the Internet is a nightmare because a successful
judgment does not deter future defamation.
In theory, a government might be able to use other remedies against the dissidents,
including injunctive relief, and the possibility of a criminal defamation action. The difficulty is
that the availability of injunctive relief, as well as a criminal defamation action is heavily
dependent on where the dissidents reside. If they reside outside the country where the defamed
government exists, it may be difficult to use these remedies. In the U.S., injunctive relief is
11
[Note, however, that China has mounted a massive attempt to insulate itself from criticism. The long-term
viability of this policy is much debated. See Fellows, The Atlantic, Feb. 2008.]
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effectively precluded by decisions such as Near v. Minnesota.87 That case involved a suit by the
county attorney of Hennepin county who sued to enjoin publication of what was described as a
"malicious, scandalous and defamatory newspaper." In Near, the Supreme Court rejected the
injunction articulating a broad rule against prior restraints. In addition, it will be virtually
impossible to bring a criminal defamation action in the U.S. While criminal defamation actions
were permissible at one point, the U.S. Supreme Court's holding in N.Y. Times Co. v. Sullivan
effectively precludes so-called seditious libel prosecutions now.
The practical problems multiply when a group of dissidents decide to act in concert.
Even if a defamation plaintiff can gain a judgment against one dissident, there is nothing to
prevent other dissidents from publishing similar allegations on their computers (or through
libraries or cybercafés). A defamation plaintiff may be forced to bring multiple suits against the
dissidents, and again those suits may be effectively unenforceable. Moreover, even if the
defamed officials could sue the dissidents collectively, there is nothing to prevent the dissidents
from publishing their allegations through an "anonymous remailer." Ultimately, the practicalities
of trans-jurisdictional litigation are likely to overwhelm potential plaintiffs.
We have pointed out that the technology of worldwide instantaneous communication will
swamp any formal causes of action in the most pro-plaintiff possibilities. The cake is simply not
worth the candle. This result is not inconsistent with defamation law. The sheer volume and
diversity of opinion on the internet, through blogs and chat rooms, carries a signal also of its
unreliability. The Courts have always taken more seriously and ascribed greater burdens to these
87 283 U.S. 697 (1931).
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publications that are deliberate and taken as highly reliable by the public.88 The hurley-burley of
the internet makes its defamatory material low on the reliability scale, particularly in relation to
political speech. Furthermore, the internet facilitates a like kind response mitigating damage.89 ]
The internet increases the voice of those who under traditional technologies were mainly
muffled.90 Like Einstein’s theory of the time and space continuum, the technology of the
internet has the effect of changing our view of the basic element (here right) at play – freedom of
speech. In New York Times v. Sullivan, a central idea was Meiklejohn’s political theory of free
speech.91 It concerned political speech in his analogy to the town hall meeting where things
worth saying get said.92 The internet forces us to look at freedom of speech allowing a wider
conception of an individual exercising a right to contribute to democratic culture. The medium
promotes a widespread democratic participation. In doing so, individual liberty is enhanced.
And it is this that must be protected. Capital and property, Balkin insists, should not be allowed
to trench on this right.93 Property concepts in intellectual property and ownership could frustrate
88 See Masson v. New Yorker Magazine, Inc., 501 U.S. 496 (1991).
89 The ability to replay plays a large part in American jurisprudence in classifying the target of
the defamation a public figure drawing protection under N.Y.T. v Sullivan, see Wells v. Liddy,
186 F. 3d 505 (4th Cir. 1999).
90
Jack M. Balkin, How Rights Change: Freedom of Speech in the Digital Era, 26 SYD. L. REV. 5
(2004) (hereafter “Balkin”).
91
ALEXANDER MEIKLEJOHN, POLITICAL FREEDOM: THE CONSTITUTIONAL POWERS OF A PEOPLE
(1960).
92
Id. At 26.
93
See Balkin, supra.
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this wider conception of free speech as cultural construction. But it is not apparent that
defamation rules attending to publications on the internet have an effect unless the courts were to
grant broad injunctions and introduce intrusive regulation. That is not the course pursued in the
Western World. Even when governments are minded to exercise draconian regulation, such as in
China, those efforts fall far short of being effective.12 Defamation action may be a corrective to
this new frictionless world by performing a function of a declarative judgment: the judiciary,
with its reputation for fairness, can speak to the accuracy of publications. The traduced person
will not have the credibility through his own voice. Through the court’s voice, the public will
have reliable information. But in the realities of the World Wide Web nothing in an adverse
judgment will prevent the circulation of the publication if it has a salience with the public. The
challenge is not the form of legal rules, but the description of non-legal norms that will govern
behavior in cyberspace.94 To have an outside referee call a foul is salutary in making
information more accurate but does not unduly disturb the rigorous conversation that promotes a
rich social construction.95
CONCLUSION
As we have seen, there is a movement towards “globalization” in regard to the tort of
defamation. There has been some convergence between countries in terms of defamation
12
[See the Fellows Atlantic, Feb. 2008.]
94
See Ellickson, Property Rights in Cattle Ranching; Solove; Zittrain.
95 Ross Cranston, Law Through Practice: London and Liverpool Commodity Markets
c. 1820-1975, L.S.E. Working Paper, 14/2007 (describing the function of the law in the subject
markets).
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standards, and a worldwide trend towards providing greater protection for freedom of expression.
Although this trend began in the United States in the 1960s on a constitutional basis,96 the
movement has continued through the expansion of common law qualified privilege in various
Commonwealth jurisdictions.97
Exceeding the moment of the changes in defamation standards is the growth of speech
technology, particularly the Internet. Defamation litigation will be reshaped. Under decisions
like Dow Jones & Co., Inc. v. Gutnick,98 defamation plaintiffs have the potential to pull far-away
defendants into court. However, because of recent decisions regarding the enforcement of
foreign defamation judgments, a non-U.S. defamation plaintiff will face formidable barriers in
enforcing a foreign defamation judgment in a U.S. court.
Another major “trend” in defamation litigation is the democratization of speech
technology. For the first time in the history of mankind, it is relatively simple and easy for
people to communicate with each other. As a result, even people of relatively modest means, or
impecunious individuals, have the ability to communicate easily and effectively with people all
96 Zittrain, Id.at246, arguing that the endurance of “our current infrastructure” depends
on “the sum of the perceptions and actions of its user”; “generosity of spirit” is the “first line,”
but then he calls for roles of “traditional state sovereigns.” See New York Times Co. v. Sullivan,
376 U.S. 264 (1964).
97 See Reynolds v. Times Newspapers, 3 W.L.R. 1010, 1024D (Eng. H.L. 1999); Jameel v. Wall
Street Journal Europe Sprl [2006] UKHL 44; Lange v. Australian Broadcasting Corporation
(1997) 189 C.L.R. 520, 521 (Austl.); Lange v. Atkinson. [1997] 2 N.Z.L.R. 22, 27 (H.C.); see
also PATRICK MILMO AND W V H ROGERS (EDS), GATLEY ON LIBEL AND SLANDER, ch. 14 (10th
ed., London: Sweet & Maxwell 2004); RUSSELL L. WEAVER, ANDREW T. KENYON, DAVID F.
PARTLETT & CLIVE P. WALKER, THE RIGHT TO SPEAK ILL: DEFAMATION, REPUTATION AND FREE
SPEECH 77-130 (2006).
98 [2002] H.C.A. 56.
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over the world. Everyone may become a journalist.13 Democratization through the internet
threatens to reshape many aspects of modern defamation law, especially in regard to transjurisdictional litigation. Internet communications are quick, easy and inexpensive, and virtually
anyone can gain access to the "net." As a result, defamation litigation will be a hollow threat in
deterring speech.
The final major trend in defamation litigation is the potential for reshaping defamation
standards. As we have seen, a number of Commonwealth countries (e.g., New Zealand,
Australia and England) have followed the United States in extending free speech protections to
potentially defamatory speech. Because the Internet is so much more accessible than print and
broadcast technology, and because it achieves such a high degree of penetration into the “speech
market,” the Internet may cause the courts to rethink their free speech doctrine as applied to
defamation. We may see that defamation liability plays a part in signaling the reliability of
information cycling in cyberspace. Any chilling effect is set off by the benefits of a quality
signal. But liability is a side show. The production of information will be influenced by nonlegal norms that will grow in cyberspace. Here in globalization is the possibility of deliberative,
democratic conversation that enhances democratic culture and individual self-realization. We
carefully say “possibility,” for dangers lurk in the internet that caution a utopian vision.14
13
Hence, in the area of contempt of court for failure to deliver to tribunals and courts information obtained
confidentially, the claim of “reporter’s privilege’ could have large consequences in the administration of justice:
Mary-Rose Papandrea, Citizen Journalism and the Reporter’s Privilege, 91 Minn.L.Rev.515 (2007).
See Zittrain at 234 (pointing to the needs for “enduring solutions and a new generation of privacy problems
brought about by the generative Internet…”).
14
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