The Globalization of Defamation

* ^* Professor of Law & Distinguished University Scholar, University of Louisville, Louis D. Brandeis School of Law.

* ^** Dean and Asa Griggs Candler Professor of Law, Emory University School of Law.

1 ^ 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.)

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 ¹ See Ogden v Turner, 87 Eng. Rep. 862 (K.B. 1703); Davies v Gardiner, 79 Eng. Rep. 1155 (K.B. 1593).

2 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.

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.”

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).

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.

010 See Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986).

11 Id.

212 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)).

313 Id.

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

515 403 U.S. 29 (1971).

616 Id., at 45.

717 418 U.S. 323 (1974).

818 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);

919 472 U.S. 749 (1985).

020 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 self-censorship by the press . . . .’” Id., at 760.

121 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."

323 (1997) 189 C.L.R. 520, 521 (Austl.).

424 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”).

525 See The Right to Speak Ill, supra, at 82-87.

626 [1997] 2 N.Z.L.R. 22, 27 (H.C.).

727 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.”).

828 [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)

929 The Right to Speak Ill, supra, at 103.

030

[2006] UKHL44]

131

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.”

232

The House of Lords refers with approval to Bonnick v Morris [2003] HS300 (Privy Council)]

33 Id., at 183-200.

434 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).

535 Id. at 183-200.

636 Id.

737 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).

838 See The Right to Speak Ill, supra, at 204-14.

939 Id.

040

Id. at .215-242

141

See Raymond E. Brown, The Law of Defamation in Canada 1096 (2d ed. 1999).

)

242

[2002] 210 C.L.R. 575 (Austl.),

343 The case that he referred to was Duke of Brunswick v. Hamer (1849) 14 Q.B. 185, 117 E.R. 75).

4 _______ [2000] 2 All E.R. 986.

44 [2004] E.W.C.A. Civ. 1329 (C.A. 2004).

5 Berezovsky v. Michaels, [2000] 1 W.L.R. 1004 (H.L) (1023-24).

(U.K.)

545 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.").

646 See Weaver & Bennett, supra note 1, at 1188.

747 Freeman Interview, supra note 169; Werner Interview, supra note 167.

848 Id.

949 Freeman Interview, supra note 169.

050 Id.

151 Id.

252 Weiss Interview, supra note 170.

353 Id.

454 Id.

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).

656 See Sarl Louis Feraud International v. Viewfinder, Inc., 406 F. Supp.2d 274 (S.D.N.Y. 2005).

757 877 F.Supp. 1 (D.C. Cir. 1995).

858 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).

959 See Logan, supra.

060 See The Right to Speak Ill, supra, at 250-51.

161 See id.

262 Id.

363 Id.

464 Id.

565 Id.

66 Id.

767

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.

868 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).

969

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).

070

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).

171

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.______]

272 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).

373 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.

474 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.

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 (9^th Cir. 2006)

575 See Near v. Minnesota, 283 U.S. 697 (1931).

676

This was established long ago in Bonnard v. Perryman, [1891] 2 Ch. 269.

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).

878 See James B. Speta, Book Review: Cyber Rights: Defending Free Speech in the Digital Age, 2 Green Bag 227 (1999).

979 Stratton Oakmont, Inc. v. Prodigy Services Co., 23 Media L. Rep. 1794 (N.Y.Sup.Ct. 1995).

080 Id.

181

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)

282 42 U.S.C. 230(c)(1).

383 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).

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).

484 77 Eng.Rep. 250 (Star Chamber 1606).

585 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 self-actualization? 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.

686 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).

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.]

787 283 U.S. 697 (1931).

88 See Masson v. New Yorker Magazine, Inc., 501 U.S. 496 (1991).

989 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).

090

Jack M. Balkin, How Rights Change: Freedom of Speech in the Digital Era, 26 Syd. L. Rev. 5 (2004) (hereafter “Balkin”).

191

Alexander Meiklejohn, Political Freedom: The Constitutional Powers of a People (1960).

292

Id. At 26.

393

See Balkin, supra.

12 [See the Fellows Atlantic, Feb. 2008.]

494

See Ellickson, Property Rights in Cattle Ranching; Solove; Zittrain.

595 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).

696 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).

797 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).

898 [2002] H.C.A. 56.

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).

14 See Zittrain at 234 (pointing to the needs for “enduring solutions and a new generation of privacy problems brought about by the generative Internet…”).

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