The Globalization of Defamation

“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 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 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 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.

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 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 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 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 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 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 “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 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 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 non-Commonwealth) 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.

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 in an English libel action.⁵

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 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 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 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.