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

the Speech Act followed in 2010.⁸ But we are getting ahead of ourselves and although we shall return to the life and times of Rachel Ehrenfeld and Rachel’s Law, it is essential to go beyond the rhetoric and examine the actual points of departure between English and American defamation law before concluding that English defamation judgments should be automatically repudiated by American courts.

Reputation and Freedom of Speech

Throughout this book, there will be frequent references to rights of reputation and free speech. Traditionally, the tort or personal injury of defamation existed separate and apart from the doctrine of free speech. Free speech lay in the realm of philosophy and legal theory whereas defamation existed as doctrinal tort law as practiced by lawyers and enforced in the courts. Nevertheless, free speech and defamation law are inextricably connected. Defamation laws, which seek to protect reputation, invariably restrict free speech, and these laws reflect how a society balances the right of free speech with the right of reputation. Generally speaking, a publication is defamatory “if it has a tendency to cause” a “right-thinking person in the community to think the less” of the person who is the subject or target of the publication.⁹ Reputation may be thought of as conceptually similar to the goodwill of a business. While not so limited, a defamatory statement frequently alleges some type of professional ineptitude or antisocial behaviour that may include criminal or immoral activity. Whether a statement is in fact defamatory is a complex subject unto itself because it is not just the mere words or the speaker’s intent but how the message is conveyed and the likely impact on the average reader that is determinative.¹⁰ Under the common law, a defamatory publication is presumed to be false and the publisher has the burden to prove truth as a defence. It is important to remember that the presumption of falsity is a central feature of the common law—the plaintiff need not prove that the negative claims are false because the court assumes that they are false. It is up to the defendant to prove the truth of the negative claims as a defence. This means that although defamation comprises