Defamation, Libel Tourism and the SPEECH Act of 2010: The First ...

experience a far more revolutionary change than Reynolds to suggest any sort of meaningful convergence with American law unless there had also been a corresponding contraction of the American privilege. The New York Times privilege as announced in 1964 is simply far too free speech oriented to be comparable with free speech rights in England or any other common law jurisdiction.⁵ However, there is an incipient convergence of American and English defamation law with respect to political speech and matters of public interest. This is because the American concept of actual or constitutional malice that applies to both public officials and public figures, which once afforded a nearly absolute media defence, has become so watered down in its application that it shows unmistakable signs of merging with the nascent English defence of reasonable journalism. With the passage of time, the American test regarding the reckless disregard of the truth has evolved into something closer to the reasonable publisher test—to the point where there may be little difference between the law of England and the United States where political speech is concerned. It is therefore not unreasonable to conclude that the defamation laws of these two nations are converging.

Defamation Law in the United States

1. New York Times v. Sullivan and the Constitutional Privilege

Until 1964, defamation law in the United States was almost entirely a matter of state law.⁶ However, the law of defamation underwent a sea change that year when the US Supreme Court announced its decision in New York Times v. Sullivan.⁷ Beginning with that case, the US Supreme Court interpreted the First Amendment of the US Constitution as creating substantial overriding considerations that limit the rights of public officials to pursue state law claims for defamation.⁸ It has even been said that the New York Times case erased centuries of libel law, at least in the United States.⁹ The case was originally decided under the laws of the state of Alabama and after being affirmed by the Supreme Court of Alabama, it was then reviewed by way of discretionary writ in the US Supreme Court and subsequently reversed. Normally, state supreme