| Chapter 1: | Defamation Laws on a Collision Course: The Evolution and Convergence of American and English Law |
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reputation by controlling or prohibiting publication of falsehoods and rights to privacy protect reputation by restricting dissemination of information that may be true but is still none of anyone’s business. With respect to falsehoods, in recent history, the United States and England have approached defamation from two different perspectives: the US mindset is that speech is free unless it falls within actionable defamation whereas the English approach is precisely the opposite whereby defamation is the prevailing doctrine unless some free speech exception applies. In this chapter, the evolution and tendencies toward convergence of the two legal systems will be addressed. In the following chapter, the subject is the relationship between free speech expectations and English and American defamation laws.
Are defamation laws in America and England converging? Until recently, such a suggestion would seem far-fetched. Since 1964, the common law of defamation in America has been consumed by First Amendment implications while the common law of England has remained relatively impervious to radical change. However, change is clearly in the wind and the chasm between the two countries is narrowing. In 1999 the House of Lords in Reynolds v. Times Newspapers Ltd.2 articulated a qualified privilege in situations where a media publisher had met the standards of a reasonable journalist in connection with an otherwise defamatory publication concerning a matter of legitimate public interest. While this privilege initially met with judicial scepticism, it was reinvigorated by the 2006 decision in Jameel v. Wall Street Journal Europe.3 On the other side of the Atlantic, the US Supreme Court in 1964 in New York Times v. Sullivan4 established stringent constitutional requirements for defamation claims made by public officials. Under the US privilege, based on the status of the claimant rather than the content of the speech, the traditional common law presumptions and burdens of proof were reversed and the victim can only make a claim when there is actual malice (defined as knowledge of falsity or reckless disregard of the truth) demonstrated on the part of the publisher.
In light of the breadth of the New York Times privilege as originally expressed by the Supreme Court in 1964, English law would need to