T
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ATIRE ANDD
EFAMATION:
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OMPARISON BETWEENU
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ABLEOFC
ONTENTS:
Abstract ……… 2
[1] Introduction ……… 3
[2] Chapter I: Background ……… 6
[2.1] Law of the United States……… 7
[2.2] Law of England ……… 14
[3] Chapter II: Comparison ……… 22
[3.1] Right to Freedom of Speech ……… 22
[3.2] Right to Privacy ……… 23
[3.3] Judicial Test ……… 24
[4] Chapter III: Evaluation ……… 26
[5] Conclusion ………31
Bibliography ……… 33
With the current political landscape, the media does not have a shortage of news to publish. Often, in order to conveys the news in a different manner or to relate to the reader better, satirical publications are made, employing humour as the primary tool. A funny, satirical article may seem like a harmless concept, however, difficulties arise for the publishers when the person who is subject to the ridicule of the piece brings an action in defamation. Where would the courts draw the boundary for a satirical publication to become defamatory? What consequences can the publishers expect in the current age of digital, worldwide publications? This is the primary focus of this thesis. The jurisdictions of the United States and England are analysed in order to see the similarities are differences between them, as well as evaluate what the publishers must be aware of if they were sued in either country. My research shows a strong protection of the constitutional right to freedom of speech under US law, which often results in the publishers winning the case. By contrast, England is seen as the libel capital of the world and thus attracting claimants to bring actions in defamation before the English courts, as their likelihood of winning is much higher there.
With the internet making website publications of newspapers global, public international law steps in to determine jurisdiction and the applicable law to such cases. Both the US and England have enacted legislation to deal with the issue of libel tourism, making it much more favourable for publishers to be sued in the US, as the near absolute free speech protection is likely to apply.
Satire and humour have a longstanding tradition in journalism. They are mechanisms for the media to relate to its audience, captivate readers and convey a message in an original manner. However, in employing such methods, the publications carry the risk of causing reputational harm to an individual. They may have the intention of mere satirical ridicule, but end up resulting in potential defamatory damage. Thus, humorous statements could carry with them potential liability in defamation for the publisher, even if the resulting harm was conveyed unintentionally. As the Irish Court of Exchequer pointed out in 1831: “[i]f a man in jest conveys a serious imputation, he jests at his peril.”1
In the current age of instant online publications made worldwide at the click of a button, it may be increasingly difficult for the publishers to predict potential liability. The same satirical piece can be accessed in different countries globally, thus having the potential to cause reputational harm globally, resulting in potential global defamation lawsuits. The advantage of the internet for the media is thereby simultaneously the source of difficulties when it comes to certainty, clarity and foreseeability of the consequences of publications. It is important for the publishers to know where their work would stand in relation to the law of defamation and to what extent it might be protected in order to continue their business with the knowledge of possible boundaries and to save on legal costs. However, different countries have developed laws and judicial dicta in accordance with the values, history and traditions of the particular legal system. Thus, the assessments of whether satire would be found defamatory to the reputation of an individual or be justified by the right to freedom of expression could vary significantly depending on where an action is brought. The media needs to be aware of these differences in order to stay well informed.
This thesis will comprise of a comparative investigation between the legal systems of the United States and England, in order to evaluate the approaches of the courts to drawing the boundary on what could constitute as ‘defamatory’ in satire. A comparison between the differences and similarities of the legal systems will be conducted, followed by an analysis of whether publishers need to take into consideration that an action for defamation against their satirical work could lead to varying outcomes, depending on jurisdiction in which that action was brought.
The United States and England have been chosen as the legal systems for comparison in this thesis for a number of reasons. Firstly, the choice was made due to their respective, 1 Donoghue v. Hayes, (1831) Hayes Ir. Exch. Rep. 265, 266.
historically different approaches to the protection of freedom of speech; the former is enshrined in the Constitution of the United States and the latter, in the absence of a constitution, relies on statute, cases law and European Union influences. Secondly, both are common law countries. This means that the main body of law come is developed in the courts, resulting in binding judicial precedent, thus a comparison of the differences in the legal systems would lend itself more naturally. Finally, the political landscape of the two countries has been in the media spotlight for over a year. The 2016 United States’ Presidential Elections, resulting in Donald Trump’s presidency;2 the 2016 EU membership referendum, resulting in Brexit;3 and the 2017 UK General Election4 have all featured prominently in the media, often the subject of political satire. Thus, the rationale for the selection of the jurisdictions was also topical and current.
The method used in this thesis is functional-institutional.5 Given that the legal institution to be examined is that of defamation in a satirical context, the functional object is the same in both legal systems. However, from a historical, legislative and case law perspectives, the United States has a different approach to when a satirical publication crosses the boundary into becoming defamatory than England does. Seeing as the function of the test for defamation is to determine whether satire constitutes libel, each legal system has a method for fulfilling this function with different reasons and considerations in mind. The thesis has an overall evaluative aim to compare and analyse different elements between two legal systems, as set out in the research question.
2 “Official 2016 Presidential Election Results”
<https://transition.fec.gov/pubrec/fe2016/2016presgeresults.pdf> accessed 10 July 2017.
3 “EU referendum results” < https://www.electoralcommission.org.uk/find-information-by-subject/elections-and-referendums/upcoming-elections-and-referendums/eu-referendum/electorate-and-count-information> accessed 10 July 2017.
4 UK Parliament, “General Election 2017: results and analysis” (House of Commons Library, Briefing Paper, Number CBP 7979) <http://researchbriefings.parliament.uk/ResearchBriefing/Summary/CBP-7979#fullreport> accessed 10 July 2017.
5 Marieke Oderkerk, “The Need for a Methodological Framework for Comparative Law Research: Sense and Nonsense of ‘Methodological Pluralism’ in Comparative Law” (2015) 79(3) Rabels Zeitschrift für ausländisches und internationales Privatrecht 589.
In terms of the primary focus and aim of this thesis, the main research question is posed is as follows:
Do the modern methods of distribution of mass media provide additional considerations for the publishers’ satirical work to be found defamatory in the context of the United States and England?
In order to fully evaluate the main research question, the following sub-questions are posed throughout the thesis.
(i) What is defamation, the test to satisfy it and the consequences of it? (ii) To what extent is the right to freedom of speech protected?
(iii) To what extent is the right to privacy protected?
(iv)What are the judicial tests to determine when a satirical publication constitutes defamation, as derived from case law, in the United States and England?
(v) What are the main similarities and differences between the approaches of the United States and England, based on the above?
(vi)What are the consequences of online media publications in relation to defamation actions taken in a cross-border context of the United States and England?
(vii) How do the rules of private international law shape jurisdictional and applicable law issues in international defamation cases?
(viii) What are the implications for the publishers of online media in the context of the United States and England?
The answers to these sub-questions will be considered, in turn, throughout this thesis in order to analyse the overarching main research question on the boundary between satire and defamation in the chosen legal systems.
[2] C
HAPTERI: B
ACKGROUNDHumour plays an important role in society. According to Sack, “[h]umour is an important medium of legitimate expression and central to the well-being of individuals, society, and their government. Despite its typical literal ‘falsity’, any effort to control it runs severe risks to free expression as dangerous as those addressed to more ‘serious forms of communication’”.6 Thus, jokes aid in building human connections and are a general source of entertainment and even happiness. On a wider scale, publishers use humour to relate certain points to their audiences, as well as to establish closer ties with them by being relatable. It is an important tool for the use in the media and could therefore, in specific contexts, come under scrutiny over the nature of the publications and their impact on those involved.
Satire, while hard to accurately and universally define,7 can be described as an “attack on some irritating aspect of the world.”8 Condren specifies that “an element of censoriousness” coupled with the use of “ridicule” or “humour”, are essential to a satirical piece.9 In other words, in order for, say, a newspaper article to constitute satire, it is not enough for it to merely pass an unfavourable judgement of someone or something, but it must do so in a humorous fashion. However, at this point, an important question of subjectivity comes in. Would the particular publication in question be deemed to be humorous to the average, reasonable reader? This will be addressed in relation to individual legal systems in the following chapter.
Finally, the courts have defined “defamation” in relation to the test that a statement needs to satisfy, in order to be considered “defamatory”.10 Lord Atkin suggested that the test should be as follows: “would the words tend to lower the plaintiff in the estimation of the right-thinking members of society generally?”11 It will be demonstrated that judges often employ the concept of a reasonable reader and an element of objectivity in cases involving satire. In 6 Robert Sack, Sack on Defamation: Libel, Slander & Related Problems (3rd ed., Practising Law Institute, New
York 1999), 47.
7 Conal Condren, ‘Satire and Definition’, (2012) 25(4) Humor 375, 377.
8 Conal Condren, ‘Defining Parody and Satire: Australian Copyright Law and its New Exception’, (2008) 13 MALR 273, 279.
9 Condren (n. 7), 378.
10 Mark Lunney, Ken Oliphant, Tort Law: text and materials (3rd ed., Oxford University Press, Oxford, 2008),
703.
order to keep the focus of this paper within the private law realm, defamation in relation to public bodies will not be discussed. It is important to note the meaning of ‘libel’ for the purposes of this thesis. Lopes LJ provided the following definition: “[l]ibels are generally in writing or printing, but this is not necessary; the defamatory matter may be conveyed in some other permanent form. For instance, a statue, a caricature, an effigy, chalk-marks on a wall, signs or pictures may constitute a libel.”12 The focus of this thesis is on media publications and this definition of ‘libel’ allows the inclusion of articles, cartoons or caricatures that are satirical in nature and could give rise to an action. Thus, the terms ‘defamation’ and ‘libel’ are used somewhat interchangeably throughout, as they convey a closely related meaning. The positive effects of humour have been briefly mentioned above. However, what is important here are the negative consequences that it may have. In a satirical context, the line between humorous critique and a defamatory statement could, at times, be blurred. It is then up to the government to define how to make such a distinction and what elements need to be satisfied in order for a publication to be found defamatory. As Little points out,
Within the specific context of defamation, this regulation must account for sometimes conflicting individual liberties (freedom of expression versus reputation and human dignity) as well as collective social benefits of criticism that might clash with individual reputational rights.13
This chapter will focus on how the courts of the United States and England test the boundary between these rights and the effect that this exercise has on the media.
12 Monson v. Tussauds Ltd [1894] 1 QB 671, 692.
13 Laura Little, ‘Just a Joke: Defamatory Humour and Incongruity’s Promise’, (2011) 21(1) S.Cal.Interdisc.L.J. 95, 109.
[2.1] THE LAWOFTHE UNITED STATES
[2.1.1] DEFAMATION
In essence, a “defamatory statement is one which injures a person’s reputation”.14 In the United States, the landmark turning point in determining if a statement is defamatory was handed down in the case of New York Times Co. v. Sullivan.15 It introduced the ‘actual malice’ standard for a defamatory publication. It involved an advertisement published by the New York Times, which was commissioned by an organisation that defended Martin Luther King. It stated, incorrectly, that Martin Luther King was arrested seven times, instead of the actual four times. The defendant, the police commissioner, filed a lawsuit against the New York Times, stating that he was defamed by virtue of the police force that he was in charge of being defamed. The court rejected this line of argument and made a constitutional ruling that actual malice is required in order for the publisher to be liable for defamation in the published material.
An interesting defence to defamation under the US law is contained under Section 230 of the Communications Decency Act 1996. The section states: “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” This essentially means that a person who merely provides a website or uses it, but does not publish the content on it, will not be liable for any defamation actions brought against these publications. This defence is reflected through case law. In Carafano v. Metrosplash.com,16 the court upheld immunity for an internet dating website when an action in defamation was brought against its user’s fake profile. In the later case of Barrett v. Rosenthal,17 the court upheld immunity for an individual internet website user who reposted a particular defamatory publication made by another user. It is important to note the federal nature of the United States. This means, in relation to defining defamation and its remedies, that there is no one rule that would be applicable to any case in any state. On the federal, overarching level, the first amendment is the majority of the extent of protection of free speech and thus qualifying defamation. The rest is largely up to the individual states to enact, as long as it is in accordance with federal law.
14 Lunney, Oliphant (n. 10), 703.
15 New York Times Co. v. Sullivan, 376 US 254.
16 Carafano v. Metrosplash.com, 339 F.3d 1119 (9th Cir. 2003). 17 Barrett v. Rosenthal, 40 Cal. 4th 33 (2006).
[2.1.2] FREEDOMOF EXPRESSION
The United States is a country well known for its liberal views on freedom of speech and its near-absolute protection of it. The First Amendment guarantees the right to freedom of speech to the citizens18 and the US courts have interpreted and applied it in a liberal manner. Freedom of speech protection plays an important part in the context of this thesis, as it is the source of State and court protection offered to publishers in defending their satirical work. Thus, the wider the scope of their right to freedom of expression as applied to the works published, the more difficult it is for plaintiffs to bring a successful lawsuit in defamation against them.
An important case to examine is Hustler Magazine v. Falwell19, which has been discussed by
Stanley Fish.20 Here, Hustler Magazine published a false interview with Jerry Falwell, a pastor and political figure. The article alleged incest on part of Mr. Falwell without expressly clarifying its fictitious nature. The plaintiff brought an action in defamation against the Hustler Magazine, alleging that this particular story damaged his reputation. The Supreme Court ruled that the magazine’s freedom of speech enjoyed constitutional protection and thus Mr. Falwell did not receive compensation for the damage caused by this article. Amongst other reasons, the court cited the fact that the article was part of “the free flow of ideas and opinions on matters of public interest and concern”21 and that the defendant was a public figure and thus “willingly entered an arena in which he could expect to be the target of ‘robust’ criticism”.22 The decision of the Supreme Court in this case clearly demonstrates the importance of the constitutional right to freedom of speechand reaffirms its place in law.
18 The First Amendment to the United States Constitution states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
19 Hustler Magazine v Falwell, (1988) 485 US 46, [hereinafter Hustler Magazine].
20 Stanley Fish, There’s No Such Thing As Free Speech, And It’s A Good Thing, Too (Oxford University Press, Oxford 1994), 102.
21 Hustler Magazine (n. 19), 46. 22 Fish (n. 20), 120.
[2.1.3] RIGHTTOA PRIVACY
The US Constitution does not explicitly offer protection to a person’s privacy. However, the Fourth Amendment does allude to the right to privacy, by generally granting the “right of the people to be secure in their persons”.
In their landmark article,23 Warren and Brandeis have taken a more defensive strategy of plaintiffs in libel cases and conducted research to show that the right to privacy in United States exists. In terms of context in which their article came about, as well as the justification for it, they state:
The press is overstepping in every direction the obvious bounds of propriety and of decency. Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as effrontery. […]The intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual; but modern enterprise and invention have, through invasions upon his privacy, subjected him to mental pain and distress, far greater than could be inflicted by mere bodily injury.24
They go on to question the basis for the courts to deny the publication due to defamation, if not for the right to privacy, and follow on to rule out property rights as the sole reasoning.25 They conclude that the right to privacy is the only reason for the courts to protect a private party from malicious intrusions of the media26 and thus it is rooted in the law of the United States and must be protected accordingly. In outlining the test to be used by the courts balancing such a right to privacy with freedom of expression on behalf of the press, Warren and Brandeis admit the difficulty of the task at hand: “[a]ny rule of liability adopt must have in it an elasticity which shall take account of the varying circumstances of each case”.27
23Samuel Warren and Louis D. Brandeis "The Right To Privacy", (1890) 193(4) Harvard Law Review 193. 24 Ibid, 195.
25 Ibid, 202. 26 Ibid, 213. 27 Ibid, 215.
In more recent tort law, “invasion of privacy” constitutes legal proceedings in tort under the “false light” category.28 This tortious category for legal action essentially means that a private individual, and not necessarily a public figure, could sue another private party for putting his name and reputation in false light of the public. This brings the right to privacy under the law of the United States into a horizontal and fundamentally private law realm. Furthermore, there is a connection between the tort of false light and defamation, which is demonstrated in the case of West v. Media General Convergence, Inc.29 In this case, the defendant published
an investigative report about the dealings of a company. An action is defamation was brought against it, alleging that some of the statements made in the report were not true. However, the plaintiffs also claimed that part of this report implied that Ms. West was sexually involved with one of the judges. On the basis of the second allegation, an action in the tort of false light was successfully brought – it was found that the defendant portrayed the plaintiff in a false light, thereby infringing her right to privacy.
Therefore, it can be concluded that, while the United States Constitution does not expressly protect the right to privacy, such a right is, nonetheless, afforded to individuals. Furthermore, it gives rise to liability in tort for breaches of different forms that the right to privacy can take on, such as “false light”.
[2.1.4] THE JUDICIAL TEST
The judicial dichotomy in the US regarding the test to be applied in cases in order to determine if a satirical publication is defamatory is summarised by Little as follows:
[When considering satire defamation cases, judges must consider] the right of individuals and groups to be free from attack on their property, dignity, and honor versus the right of individuals to free expression. To make matters more complicated— in fact, much more complicated—the line must not only account for, but also respect, the artistry of comedy and its beneficial contributions to society.30
28 William Prosser, "Privacy", (1960) 48(3) California Law Review 383.
29 West v. Media General Convergence, Inc., (Tennessee, 2001) 53 S. W. 3d 640, 641.
30 Laura Little, ‘Just a Joke: Defamatory Humour and Incongruity’s Promise’, (2011) 21(1) S.Cal.Interdisc.L.J. 93, 93.
In this context, a substantial body of case law has developed in the United States. In the
Hustler Magazine case described above, the court commented, in ruling in favour of the
protection of freedom of speech for publications, that the use of satire in the media enriches public and political debate and is overall beneficial for society.31 It is an important consideration for the courts in the United States when considering cases of satire and libel and clearly features in their reasoning.
However, the crux of the judicial dicta in this area lies with the test of when a satirical piece would cross the boundary into becoming defamatory. The United States courts have employed the well established common law rule of “reasonable interpretation” in relation to defamation.32 In the case of Pring v. Penthouse International,33 a contestant in the Miss America Pageant brought a case against the publisher, alleging defamation due to their satirical story making lewd allegations against a fictional character that strongly resembled the plaintiff. The court ultimately did not find that the work was defamatory, albeit distasteful, as “it is simply impossible to believe that a reader would not have understood that the charged portions [of the story] were pure fantasy and nothing else … The incidents charged were impossible. The setting was impossible.”34 This case demonstrates that the courts in the United States tend to favour the test of the so-called ‘reasonable reader’, meaning that, if a reasonable reader of the satirical publication can clearly deduce that the story is intended to be satirical, humorous or fictional, it will not ultimately be found defamatory and no liability for the publisher will follow.
A later case that followed reaffirmed the judicial approach of the ‘reasonable reader’ test in
Pring and further solidified Huster Magazine’s application in cases of defamation. In Milkovich v. Lorain Journal Co.,35 a fight broke out based on high school rivalry of two teams. It was widely speculated that the plaintiff in this case, Mike Milkovich, initiated the fight and he had to give testimony at a later hearing regarding the disciplinary action taken by the school’s athletic association. Subsequently, a sport writer for a newspaper wrote about the court’s decision and in his column suggested that the plaintiff lied under oath about the 31 Hustler Magazine v Falwell, (1988) 485 US 46, 54.
32 Hariette Dorsen, “Satiric Appropriation and the Law of Libel, Trademark, and Copyright: Remedies Without Wrongs” (1985) 64(2) Boston University Law Review 923, 935.
33 Pring v. Penthouse International (1983) 462 US 1132. 34 Ibid.
events without including any evidence or examples of it. Milkovich sued for libel. The court commented that the development of case law on defamation “provides protection for statements that cannot ‘reasonably [be] interpreted as stating actual facts’ about an individual.”36 It can be seen that the courts continue to use ‘reasonableness’ as a standard in defamation cases. Further, Gutterman commented on this case that “satire may be more readily deserving of First Amendment protection because it can be viewed as a form of commentary”.37 If the courts look at satire as such commentary on an individual, albeit humorous, it could extend even further protection for publishers in the United States.
Later cases further qualified where satire stood in relation to defamation, albeit in the Court of Appeal. In Hamilton v. Prewett,38 a website was published by Prewett that made fun of Hamilton and his business, changing his name slightly to ‘Hamilten’, but clearly being directed towards the plaintiff. Hamilton argued that this was defamatory and damaged his reputation and that of his business. The defendant stated that the website was “a form of comedy, parody, or satire”.39 The Appellate Court, in ruling in favour of Prewett, carved out a near-absolute protection for satirical works:
Defamation is, by its nature, mutually exclusive of parody. By definition, defamation requires a false statement of fact; parody, to the degree that it is perceived as parody by its intended audience, conveys the message that it is not the original and, therefore, cannot constitute a false statement of fact.40
The court further commented that not defining satire in such a way would be detrimental to freedom of speech and publications, as “very few journalistic parodies could survive”.41 It is therefore an important consideration for the courts to regard the development of journalism and their ability to publish freely. The test that the courts apply cannot be too restrictive to free speech, because the quality and risk-taking of publishers could be at risk if they fear
36 Ibid, 20.
37 Roy Gutterman, “New York Times Co. v. Sullivan: No Joking Matter - 50 Years of Protecting Humor, Satire and Jokers”, (2014) 12 First Amendment Law Review 497, 509.
38 Hamilton v. Prewett, (2007) 860 N.E.2d 1234. 39 Ibid, 1236.
40 Ibid, 1244. 41 Ibid.
lawsuits for a satirical work. They need to be able to conduct investigations and exercise freedom of expression as per the First Amendment.
It is clear that the standard of a “reasonable reader” is one that the courts in the United States have used in relation to satire. Starting from the landmark case of Hustler Magazine and subsequently upheld and reinstated in later cases, the courts have been eager to uphold the First Amendment protection of freedom of speech for publishers and find that satire did not meet the necessary standard to constitute defamation. In other words, a reasonable reader would clearly see that the aim of the publication is satirical and thus would not draw negative conclusions in relation to the reputation of the claimant. The United States’ judiciary generally interprets the law to offer wide protection for free speech, as reflected in the case law and the judicial test applied.
[2.2] LAWOF ENGLAND
[2.2.1] DEFAMATION
The introduction of the Defamation Act 2013 in the United Kingdom defined the elements of defamation that were previously primarily found in case law in England. The traditional test for defamation, as laid down by Parke B, requires that the allegedly defamatory statement was “calculated to injure the reputation of another by exposing him to hatred, contempt or ridicule.”42 The Defamation Act does not have the element of intention and, rather defines defamation in terms of the consequences, as they affected the plaintiff. Section 1(1) states that, in order to constitute defamation, the publication of a statement “caused or is likely to cause serious harm to the reputation of the claimant.”
However, the Defamation Act does not cover all elements related to defamation, so the case law precedent still plays an important role in defining and clarifying nuances in this area. The judgment in Knuppfer v. London Express adds the requirement that the statement in question must refer to the claimant: “[i]t is an essential element of the cause of action in defamation that the words complained of should be published ‘of the plaintiff’.”43 Furthermore, albeit 42 Parmiter v. Coupland (1840) 6 M & W 105, 108.
somewhat obviously, the statement must also be published – private statements, such as letters, cannot constitute as containing defamatory statements, as they are intended to be private.44
The available defences that a publisher could evoke in response to an action in defamation brought against him out detailed in the Defamation Act and some of the most relevant ones for this topic will be discussed here. The old common law exception of “justification” is replaced by the “defence of truth” under section 2, for which the claimant must “show that the imputation conveyed by the statement complained of is substantially true.” The test for the defence of truth, as set out in Sutherland v. Stopes,45 that the allegation needs to be “true in substance and in fact” is still applicable.
Another important defence comes form the fundamental right to free speech and has been labelled by Scott LJ as the defence of “fair comment on a matter of public interest”, which is “one of the most fundamental right of free speech and writing which are so dear to the British nation, and it is of vital importance to the rule of law on which we depend for our personal freedom that the courts should preserve the right of ‘fair comment’ undiminished and unimpaired.”46 This common law defence to defamation is reflected in section 4 of the Defamation Act, which, under section 4(1)(a) requires that the statement must be made “on a matter of public interest”47 and, under section 4(1)(b), that “the defendant reasonably believed that publishing the statement complained of was in the public interest.”
The Defamation Act, however, did not borrow all of its defences from those established through case law. Section 5 allows operators of websites to be exempt from liability for a potentially defamatory statement posted on the website if they were not the ones who published them. This newly introduced defence is interesting to note in the context of the increasingly important role that the internet plays in the distribution of media and the acknowledgement of this fact by the legislature.
[2.2.2] FREEDOMOF EXPRESSION
44 Huth v. Huth [1915] 3 KB 32. 45 Sutherland v. Stopes [1925] AC 47.
46 Lyon v. Daily Telegraph [1943] KB 746, 753.
47 This is the enactment of the criteria laid down by Lord Denning in London Artists v. Litter [1969] 2 QB 375, 394.
In the absence of an actual constitution in the United Kingdom, England does not, as such offer a constitutional right to freedom of expression. However, this does not mean that no such right is afforded to individuals in England. In fact, domestic English legislation, as well as European and international legislation, shaped the right to freedom of expression in England together.
The Universal Declaration of Human Right is a declaration from the United Nations that has been adopted by the United Kingdom. Article 19 of the Universal Declaration of Human Rights grants individuals a human right of freedom of expression and states:
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
This Article does, in principle, confer a right to freedom of expression in England. However, historically, English law demonstrated reluctance to allow direct horizontal reliance on a right from the declaration. This has been seen to take a turn in favour of rights recognition in the case of Derbyshire Country Council v. Times Newspapers,48 where the court recognised that the law of defamation is in accordance with the rights in the Universal Declaration of Human Rights, for example, as was in that specific case, in relation to the media’s unqualified right to critique a public body.49
In a more domestic, rather than international context, the Human Rights Act 1998, under Article 10 guarantees the right to freedom of expression:
Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.
With the introduction of this legislation, it can be argued that the English courts have a positive obligation to develop the common law in their jurisdiction in accordance with the protected rights of the European Convention on Human Rights.50 This includes the protection 48 Derbyshire Country Council v. Times Newspapers [1993] AC 534.
49 It is of importance to note that this particular example was in a public context and the direct application of rights of the Universal Declaration of Human Rights in a private law setting is less clear.
50 Mark Lunney, Ken Oliphant, Tort Law: text and materials (3rd ed., Oxford University Press, Oxford, 2008),
of the freedom of expression. However, it does not come without certain limitations. Any such restrictions on the freedom of speech must be both “prescribed by law” and “necessary in a democratic society”.51
In this context, it can be concluded that the law in England, while not prescribing a constitutional right to freedom of expression does, nonetheless provide for it in legislation.
[2.2.3] RIGHTTO PRIVACY
Much like in the section above, English law does not have a constitutional right to privacy. However, what is important in the context is the United Kingdom’s membership in the EU and the latter’s significant influence on the levels of protection offered to individuals by the State. Human rights play an important role at the supranational EU level and, in relation to shaping English law, “undoubtedly the most dynamic area has been that of privacy law”.52 The change in English law in this area came with the introduction of the Human Rights Act 1998. Article 8(1) enshrines the right to a “private and family life”, from which a protection of the right to privacy could be derived. There has been speculation and uncertainty, however, in relation to what this would mean in practise. After the coming into force of the legislation, judges had commented differently on its meaning. Lord Hoffmann in Wainwright
v. Home Office53 expressed his belief that it was up to the legislative branch of the
government, not the judiciary, to develop the law of privacy.
Due to the Article 8(2) only extending the protection of the right to privacy being free from “interference by a public authority”, it is difficult to put it in a private law context. Although in the case of Campbell v. Mirror Group Newspapers54, Article 8 of the Human Rights Act
1998 has been recognised to extend its protection to public figures being photographed in a public setting as against a newspaper, the full extent of the horizontal application of the right to privacy is not yet realised. On this issue, Lord Mance commented that the narrow public protection offered by the Human Rights Act 1998 is unrealistic and that a horizontal effect of 51 Ibid, 774.
52 Paula Giliker, The Europeanisation of English Tort Law, (Hart Publishing, Oregon, 2014), 169. 53 Wainwright v. Home Office [2004] 2 AC 406.
a right to privacy should be an inevitable outcome.55 Since the very nature of defamation is likely to involve individuals brining cases against media company private parties, it should logically follow that they should be able to enjoy the right to privacy in this context too. The right to privacy is important in the context of defamation actions, as claimants could be able to rely on their right to privacy in the English courts directly based on the legislation. However, the public nature of the right as it is current positioned in English law casts doubt on the ability of individuals to use it in cases against private parties. Thus, without further development of the case law by the judiciary or an implementation of detailed acts on the law of privacy by the legislature, the position of the right to privacy in a private context remains uncertain.
[2.2.4] THE JUDICIAL TEST
With the common law system playing a prominent part in England, and in the absence of a constitution in the United Kingdom, a vast majority of the law of defamation has been left up to the judges. The cases of determining the boundary for satirical publications are no different and judges had to develop and appropriate test in order to provide clarity of the law.
England has historically established itself as a country with laws that favour the claimant in defamation actions. For instance, the landmark Reynolds v. Times Newspapers56 case sets out
the considerations that will be taken into account when deciding whether publishers qualify for the exception of public interest to defamation actions:
1. The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true.
2. The nature of the information, and the extent to which the subject-matter is a matter of public concern.
3. The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories.
4. The steps taken to verify the information.
55 Jonathan Mance, “Human Rights, Privacy and Public Interest: Who Draws the Line and Where?” (2009) Liverpool Law Review 263, 266.
5. The status of the information. The allegation may have already been the subject of an investigation which commands respect.
6. The urgency of the matter. News is often a perishable commodity.
7. Whether comment was sought from the plaintiff. He may have information others do not possess or have not disclosed. An approach to the plaintiff will not always be necessary.
8. Whether the article contained the gist of the plaintiff's side of the story.
9. The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact.
10. The circumstances of the publication, including the timing.57
The above criteria, although giving the publications an opportunity to use the public interest defence to defamation claims, illustrates the hurdles that they would have to go through to prove it as such. It holds the media to the highest level of accuracy and considerations, as well as boxes to have checked and the interests of the plaintiffs reflected, before being able to avail of this exception. More recently, the Defamation Act 2013 abolished the common law Reynolds defence into the legislature by creating, in Section 4, the "publication on a matter of public interest" defence.
Indeed, the English courts have not always found in favour of the defendants. In the case of
Charleston v. News Group Newspapers Ltd.,58 a mocking cover of a magazine was published
of soap opera celebrities, who were photoshopped to look like they were engaging in sexual intercourse. They claimed that this was defamatory, but the House of Lords disagreed. It reasoned that the text and picture were clearly computer-generated and meant as a joke, which would not give rise to defamation alone. Crucially, however, the House of Lords decision turned on the fact that the actual article that followed the photograph clarified that this was meant for humour and did not hold truth to it. What was most important to the court was that all published material must be looked at together and, if one part clarifies the other, then the publication will not be found defamatory.59
57 Ibid, 139.
58 Charleston v. News Group Newspapers Ltd. [1995] 2 AC 65. 59 Prescott, “Libel and Pornography” (1995) 58 MLR 752, 769.
However, in the 2008 case of Elton John v. The Guardian Newspapers60 saw the case law
develop in a slightly different direction. The Guardian newspaper published a satirical diary entry on behalf of Sir Elton John, in which it mocked the charity event that the plaintiff organised, the guests that attended and the donors for the AIDS cause. Elton John brought an action for libel against the newspaper. The Guardian, however, argued that the piece intended to be merely humorous and thus should be protected under freedom of expression. However, the court ruled in favour of the newspaper. In the judgment, the court employs the test of a ‘reasonable reader’, stating, in relation to the published diary, that “it is common ground that no reasonable reader could understand them as being written by the Claimant” and that any such reader would have recognised it to be “an attempt at humour”.61
Despite the ‘reasonable reader’ test, the court further emphasised a number of important factors that played a role in deeming the publication a mere satirical piece and thus not defamatory: the context, the placing and the prominence. These aided the judge in his decision and are thus useful criteria for the future determinations of humorous work. The context is qualified as “the narrower sense of the whole of any other words published on the same occasion, of which the words complained of form a part.”62 In the current case, the publication was made specifically in the “Weekend” section of The Guardian and did not appear in the “News” part of it, which was a separate pull out section. This contributed the court’s reasoning that a reader would not have found the diary entry to be factual.
This came as a somewhat surprising win for the newspapers and press in England. Following the case law developments in English law in the past, it would be suggested that the judiciary leans towards ruling in favour of the claimant in such circumstances. Of course, a win would depend heavily on the individual circumstances of the cases, as well as the context of a publication.
However, the 2012 case seemed to reaffirm England’s traditional stance of leaning in favour of the claimant in defamation cases. In Frankie Boyle v. MGN Ltd.,63 the facts of the case were quite similar to that of Elton John. In this instance, the claimant was a well known comedian. The Daily Mirror, the defendant, published an article about him, referring to him 60 Sir Elton John v. Guardian News & Media Limited [2008] EWHC 3066 (QB).
61 Ibid, para. 23. 62 Ibid, para. 20.
as a ‘racist comedian’ and alleging that his dismissal from his job on a television comedy show ‘Mock of the Week’ was deserved. The defendant argued that the statement was made in relation to the nature of the jokes that the plaintiff tells and that a reasonable viewer of his work on television would have understood it to be so, thus the statement was not defamatory. However, the court disagreed with this reasoning and awarded Mr. Boyle £54,650 in compensation. This case is a lot more in line with England’s tendency to award defamation action claimants.
It can be concluded that, from the cases outlined above, the approach of the English courts to defamation, and satirical publications in particular, is cautious. While attempting to balance the freedom of expression on the part of the press and the right to a reputation on the part of the plaintiffs bringing the actions, the courts often stress the “reasonable reader” test. Would a reasonable person reading the article find that it was intended to be humorous or a serious and malicious misstatement of facts? However, this test does not apply in a vacuum and must be regarded in the context of the overall publication.
It is not the aim of this thesis to show that England does not protect satire and humorous publications. Satire has an important role in freedom of expression and political discourse. However, the cases outlined above demonstrate how, despite offering protection, the courts will not make it easy for the newspapers. This is evident in the case of Elton John v. The
Guardian, where factors like the placement of the publication in the newspaper as a whole
played a crucial role, and in Boyle v. MGN, where the court sided with the plaintiff and refused to look at his comedy routine as justifying the racial remark in the newspaper.
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HAPTERII: C
OMPARISON[3.1] RIGHTTO FREEDOMOF SPEECH
The right to freedom of expression, speech and opinion is one widely protected by jurisdictions. The United States and England are no exceptions and both offer protection of the freedom of speech. However, differences can be seen on examination of the laws outlined in the previous chapter.
Firstly, we need to consider the source of legitimacy for the right to freedom of expression in both jurisdictions. The United States, arguably the most adamant and liberal protector of free speech, enshrines the right to freedom of expression in its constitutional First Amendment. By contrast, English law does not have a constitutional level of protection to the freedom of expression. Lacking a constitution as such, it can be argued that no matter what level of protection that the English law would theoretically provide to free speech, it can never measure to the constitutional protection of the United States.
Secondly, the protection of the freedom of expression as outlined by the courts should be briefly looked at. In the United States, the extent to which this protection goes can perhaps be best observed in the case of the Hustler Magazine, where the court decided that a publication that made allegations of an incestuous relationship against the plaintiff was, in fact, protected by the First Amendment. It followed with precedent that freedom of speech protection was offered to the media on a very large scale and it is hard to bring a successful libel case there. In England, the McDonald’s v. Steel & Morris64 case saw an action brought by the fast food
giant against Greenpeace activists for libel. Both in the High Court and the Court of Appeal, the judges found in favour of McDonalds and, effectively, against the freedom of speech for libel. This case is a good illustration of the approach that the English courts take towards defamation. This case was an extra sensitive one, due to the plaintiff being a large multinational company, claiming damages from two rights activists. Public outrage subsequently condemned McDonald’s for this case. The English judges are thus much more likely to side with the claimant in cases of libel allegations than the United States’ courts, not placing the same amount of importance on the protection of freedom of speech as each other. The United States, perhaps somewhat unsurprisingly, offers a greater level of protection to speech than, by comparison, England. The constitutional status, as well as the consistent 64 McDonald's Corporation v. Steel & Morris [1997] EWHC QB 366.
development of case law that reaffirms it, combine to form a strong shield for publishers to write satirical works without the fear of punishment in the United States.
[3.2] RIGHTTO PRIVACY
The right to privacy is an important consideration for the topic discusses in this thesis, as it comes into play when a balance has to be struck by the courts in considering what could constitute defamation. The previously discussed right to freedom of expression is often weighed against and balanced with the right to privacy. Such a right, while also present in both jurisdictions, does so to different degrees and could be somewhat uncertain.
Firstly, privacy is alluded to in the United States Fourth Amendment of the Constitution. Albeit not expressly stated, the courts have reaffirmed it as the basis for putting publications about individuals in defamation cases through scrutiny. One of the reasons that the media has some boundaries on publication of material relating to the reputation of an individual is his/her right to privacy. In England, again, no constitutional right to privacy can exist. The influence of the European Union through conventions and declarations, as well as the introduction of the Human Rights Act 1998, give a more solid ground for the general privacy protection in English law. However, they generally concern public law protection form the interference of state bodies, as opposed to other private individuals.
Thus, both the United States and England offer privacy protection. It has been analysed in the previous chapter that the United States offers privacy a degree of protection, due to its constitutional derivation and judicial acknowledgement; however, the influence of the European Union on the laws in England introduced a strong emphasis on the protection of individual privacy. The European Union places a lot of value on personal privacy, as seen under the European Convention of Human Rights, Article 10. This translates into English law and even potentially creates a positive obligation for the common law courts to enforce it.
The judicial test is probably the most important element in the comparison exercise, as it brings the two conflicting rights of the press and individuals and applies the balancing exercise. However, such a balance and the way it comes about “can vary from society to society, not only as between those embracing different cultures, but also as between some countries of generally similar cultural outlook”.65
Both the courts of the United States and England use the test of the ‘reasonable reader’. However, it is the circumstances surrounding this test that differ from one jurisdiction to another. The way that the test is applied by the judges to individual cases is not uniform, thus resulting in significant differences in outcomes in defamation cases concerning satirical publications
In the United States, the courts have applied the test of the ‘reasonable reader’. This test has been generally accepted and recognised by the courts66 and, in general, poses the question of “whether the humor contains material that a reasonable reader or fact finder could interpret as suggesting actual facts”.67 This test is generally applied freely and to humorous publications and extends as far as the allegations in the Hustler Magazine case. The courts have shown a trend of including almost all cases of satirical publications as not being defamatory when brought to court or put to the judicial test.
This extensive protection evident in the case law of the United States is not mirrored under English law, as detailed in the first chapter. Often regarded as a country with a “chilling effect on the media,”68 English judges have put up rigorous tests for the media to satisfy, before they would be able to claim that a defamation action in general does not apply in the case at hand. More specifically, when it comes to satire, the courts have taken a view slightly more similar to that of the United States dicta. The Elton John v The Guardian case demonstrated that the ‘reasonable reader’ standard did still apply in cases of humorous, satirical works. However, the court placed importance on the context of the publication, where the publication has been made and other factors that had to be satisfied by the 65 Campbell McLachlan and Peter Nygh, Transnational Tort Litigation: Jurisdictional Principles, (Clarendon Press, Oxford, 1996), 107.
66 Knievel v. ESPN, 393 F.3d 1068, 1071; Dworkin v. Hustler Magazine Inc., 867 F.2d 1188, 1193.
67 Laura Little, ‘Just a Joke: Defamatory Humour and Incongruity’s Promise’, (2011) 21(1) S.Cal.Interdisc.L.J. 95, 123.
‘reasonable reader’ standard. It thus places an additional burden of proof on the publisher in England to prove that the work was, in fact, not defamatory.
The most recent English case in its longstanding history of libel protection is that of Monroe
v. Hopkins.69 In it, the defendant, a famous television personality, commented on social media that the plaintiff, a political activist, supported vandalism to a war memorial in the run up to the 2015 UK General Elections. The court ruled in favour of the claimant and ordered Ms. Monroe to pay costs and damages in excess of £300,000. The rationale of the court is that the tweet caused “serious harm’ to the plaintiff, a prerequisite to satisfying the test for defamation.
Finally, it can be seen that the judicial tests from the two jurisdictions, while not completely at odds with each other, do not allow for similar levels of protection for the press or, often, the same outcomes in case law.
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HAPTERIII: E
VALUATIONIn the current age of online media, a publication can be made on the internet that would effectively be published nearly worldwide in an instant. McLachlan and Nygh point out that, in the case of online publications, “virtually worldwide publication can be achieved almost instantaneously.”70
Private international law plays an important role in the context of this thesis, as “the law of defamation represents the perfect lens through which to examine the adequacy of traditional choice-of-law regimes in cyberspace.”71 It is important because it outlines the jurisdiction, applicable laws and the nature of a claim that can be brought in a particular country. It is important at this stage to distinguish between issues of jurisdiction and applicable law. In the context of private international law, jurisdiction is when a court of a particular country is entitled, by law, to hear and adjudicate on a case.72 Applicable law, on the other hand, is the law that the court will apply in assessing and judging a case, which does not have to be the same as the law of the country in which the court has jurisdiction.73 Therefore, in evaluating the level of protection offered to publishers in the United States and England, it is important to examine jurisdictional and applicable law rules, as well as their effects.
[4.1] JURISDICTION
Since England, as part of the United Kingdom, is still a member of the European Union, its laws on jurisdiction are determined by the Brussels I (Recast) Regulation.74 Notably, the regulation does not exclude defamation cases. According to Article 4, “persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member States.” When it comes to media companies, the definition of ‘domicile’ is clarified by Article 63: “a company or other legal person or association of natural or legal persons is 70 Campbell McLachlan and Peter Nygh, Transnational Tort Litigation: Jurisdictional Principles, (Clarendon Press, Oxford, 1996), 106.
71 P.A. Davis, “The Defamation of Choice-of-Law in Cyberspace: Countering the View that the Restatement (Second) of Conflict of Laws is inadequate to Navigate the Borderless Reaches of the Intangible Frontier” (2002) 54 Federal Communications Law Journal 341.
72 Xiaodong Yang, Jurisdiction (Oxford University Press, Oxford, 2012), 8.
73 Cheshire and North, Private International Law (11th edn, Butterworths, London, 1987), 237.
74 Regulation (EU) No 1215/2012 of the European Parliament and the Council of 12 December 2012, which replaced Brussels I Regulation, Council Regulation (EC) No 44/2001 of 22 December 2000.
domiciled at the place where it has its: (a) statutory seat; (b) central administration; or (c) principal place of business.” Furthermore, Brussels I (Recast) gives special jurisdiction provision in instances of defamation under Article 7, which states that “[a] person domiciled in a Member State may be sued in another Member State: (2) in matters relating to tort, delict or quasi-delict, in courts for the place where the harmful event occurred or may occur.” This means that, if the publisher in a particular case is domiciled in a Member State of the European Union, they could be sued in that Member State or in the Member State where the plaintiff suffered the harm from an allegedly defamatory publication.
In order to clearly explain what the European Parliament envisaged by this in relation to particular instances of defamation law, it is useful to examine European case law. The leading case on jurisdiction in the European Union is that of Shevill v. Press Alliance,75 in which the claimant brought an action for defamation against a French newspaper. The defendant argued that the English courts do not have the jurisdiction to take this case, as the vast majority of the printed publications have been made on the territory of France, with only a minority published in England. The court disagreed and ruled that a claimant in defamation cases could bring such an action either in the place where the material was distributed or where the publisher is established.
In another EU case, a joint one of eDate Advertising GmbH v. X and Olivier Martinez,
Robert Martinez v. MGN Limited,76 a similar defamation issue is addressed, but in the context of internet publications. In the first case, an Austria-based website published the full name and appeal details of the plaintiff, who was convicted of murder. In the second case, a UK-based online version of the Sunday Mirror wrote an incorrect article about the celebrity plaintiff’s personal life. The court found that it needed to expand the rule in the Shevill case in order to accommodate the intricacies of online publications:
The placing online of content on a website is to be distinguished from the regional distribution of media such as printed matter in that it is intended, in principle, to ensure the ubiquity of that content. That content may be consulted instantly by an unlimited number of internet users throughout the world, irrespective of any intention on the part
75 Case C-68/93 Shevill v. Presse Alliance SA [1995] ECR I-415.
76 Case C-509/09 eDate Advertising GmbH v. X and Case C-161/10 Olivier Martinez, Robert Martinez v. MGN Limited [2011] ECR I-10269 [hereinafter eDate].
of the person who placed it in regard to its consultation beyond that person’s Member State of establishment and outside of that person’s control.77
In its ruling, the court states that the plaintiff may bring an action against the publisher before the courts of the Member State in which the centre of the plaintiff’s interests is based, where the publisher is established or “each Member State in the territory of which the content placed online is or has been accessible.”78 Thus, a publisher has the potential to be sued in every Member State if the publication is made online.
When the defendant is not domiciled in any of the Member States, as a US-based publisher would be, Article 6 of Brussels I (Recast) provides that it is up to the courts of each Member State to determine, in accordance with its own laws, whether they have jurisdiction in a case. In accordance with the English Civil Procedure Rules and Practice Direction 6B, Section IV, Part 6, Rule 3(1)(9), the courts in England may seize jurisdiction if the plaintiff sustained the damage from the publication in England or if the plaintiff sustained such damage as a result of an act (the satirical defamatory publication) that occurred in England. This means that, even if the publication was made in the United States, but its online nature meant that readers can access the content in England and thus the plaintiff’s reputation was, allegedly, damaged there, then the plaintiff can bring an action against a US media company before an English court.
In the United States, the Securing the Protection of our Enduring and Established Constitutional Heritage Act 2010 [hereinafter SPEECH Act], which will be discuss in greater detail further on in this chapter, limits the courts to only accepting jurisdiction over a foreign case when such a case would not infringe the rights that the Constitution of the United States enshrines.
[4.2] APPLICABLE LAW
From the English perspective, a number of key legislative instruments can be looked at. At a domestic level, the Private International Law (Miscellaneous Provisions) Act 1995 deals with choices of law. At the European level, Rome II Regulation deals with applicable law matters in a non-contractual context, primarily that of tort law. However, both of these important pieces of legislation specifically exclude defamation from them. Following this, the 77 Ibid, para. 45.
determination of which law ought to be applied to a specific case falls on the English courts to apply common law to defamation cases in two distinct instances. Firstly, if the tort was committed in another country, the so-called ‘double-actionability rule’ will apply, that is, English courts will only assume jurisdiction over the case if it is an actionable tort under the foreign law of where the tortious action in question occurred and also under English law. Secondly, if the tort was committed in England, domestic laws apply.79
The interaction between England and the United States can be seen in the case of Bin
Mahfouz v. Ehrenfeld.80 An author published a book, accusing a prominent businessman of funding terror groups. The publisher was in the United States and all distribution was aimed at the sale in the United States. However, a few copies of her book were purchased in the United Kingdom online and thus the English court seized jurisdiction over the case when the claimant alleged defamation. An order for a large sum of compensation, as well as an injunction order, was made by the court. However, the author then brought a counter claim in the United States,81 which was upheld. One of the outcomes of this case is the Free Speech Protection Bill, which was passed in the Congress in 2010 to become the SPEECH Act, which discussed in the next section.
It is clear that, when it comes to applicable law, the two jurisdictions may clash and result in opposing judgments.
[4.3] LIBEL TOURISM
Libel tourism is a term initially coined by Geoffrey Robertson QC and is used to describe the “ease in which a claimant can initiate a libel claim within a jurisdiction that, where it can be reasonably argued, has a tenuous connection to the dispute. This usually turned out to be England and Wales, where strong protection of reputation laws prevailed.”82 Thus, libel tourism has been increasingly becoming a big issue since internet became a possible method of distribution of media. Plaintiffs that suffered reputational harm in England often chose to bring their claim there. Furthermore, the United States applies the single publication rule, as
79 Dicey, Morris & Collins, The Conflict of Laws (14th edn, Sweet and Maxwell, London, 2006), 379.
80 Bin Mahfouz v Ehrenfeld [2005] EWHC 1156 (QB). 81 Ehrenfeld v. Mahfouz, (2007) 9 NY 3d 501.
82 Ali Auda, “A proposed solution to the problem of libel tourism” (2016) 12(1) Journal of Private International Law 106, 106.
demonstrated in the case of Keeton v Hustler Magazine.83 This means that, unlike England,
the claimant is only able to bring one claim in a US court for a tort involving, in the present thesis context, a mass distribution of a publication. In comparison, English courts would recognise a multitude of tort claims arising from such a publication. This made the latter a much more popular destination for libel tourists, with a higher chance to be awarded damages by the court.
In response to the current problem of libel tourism and the Bin Mahfouz v. Ehrenfeld, the SPEECH Act was introduced in the United States in 2010. It allows “a ‘United States person’ against whom a defamation judgment has been obtained in a foreign country to bring proceedings in the United States to obtain declaratory relief, injunctions, compensatory damages and, in certain cases, treble damages against the person who brought the defamation proceedings.”84 Crucially, however, the SPEECH Act states that its aim is to “prohibit recognition and enforcement of foreign defamation judgments in United States Courts where those judgments undermine the first amendment to the Constitution of the United States.” The Act, therefore, offers a wide protection to the publishers. A judgment obtained abroad, for example, in England, which does not have the same degree of protection for freedom of speech under the US Constitution – which it is unlikely to possess, given such a high standard of protection to match – will not be recognised and enforced in the United States. The protection that the United States offers to publishers is thus very high.
On the other hand, English legislators also took action in order to tackle the problem of libel tourism with the Defamation Act 2013. Section 9(2) specifies that, in relation to an action brought against a defendant domiciled outside the UK or the EU, the court must be “satisfied that, of all the places in which the statement complained of has been published, England and Wales is clearly the most appropriate place in which to bring an action in respect of the statement.” While this is a step on part of the legislature to minimise libel tourism, it does leave a certain level of discretion for the courts within the scope of section 9(2), as they have to determine the most appropriate forum.85 This opens the potential for the judiciary to exercise this discretion and continue to allow the multitude of defamation cases and to award reputational damages against the publishers.
83 Keeton v Hustler Magazine, Inc, 465 US 770.
84 Trevor Hartley, “Libel Tourism and Conflict of Laws” (2010) 59(1) International and Comparative Law Quarterly 25, 32.
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ONCLUSIONPublishers in the current digital age could face a number of consequences. As the previous chapter has demonstrated, publishers could be sued in either United States or England, provided that there is access to their online publication and thus reputational damage in both jurisdictions.
The law of defamation in a cross-border context provides an interesting choice of jurisdiction for the claimants, but send warming signals to the publishers of the satirical work. In light of the differences of the judicial test applied in the two countries, the law could either favour the protection of freedom of speech and offer satirical publications wide discretions in terms of what depict, or the law would put up barriers to tackle before a publication is deemed to be purely satirical and not defamatory.
The freedom to choose brings uncertainty of the law and its consequences to the media. It is rare that a publication would nowadays exist purely in printed format, to the exclusion of an online counterpart publication. However, the latter means that the publication is made nearly worldwide and thus allows the potential for forum shopping of ‘libel tourists’, in order to pick the jurisdiction under the laws of which they stand the highest chance of winning.
Awareness of which countries could access the publications, as well the libel laws in each jurisdiction, could be helpful in preparing the publications for libel lawsuits.
This thesis set out to answer the question of whether the modern methods of distribution of mass media provide additional considerations for the publishers’ satirical work to be found defamatory in the context of the United States and England. To be able to find the answer, defamation in itself has been the two legal systems have been compared in the areas of conflicting rights to freedom of expression of the press and the right to privacy of an individual. Case law was brought into analysis in order to determine what tests the judiciary would apply when determining whether a satirical statement would constitute defamation. Each of these elements have been compared to each other to see what the similarities and differences between the legal systems are.
It has been found that the near absolute protection of the right to freedom of expression in the United States leads to the judicial approach to testing a satirical statement boundary with defamation to be leaning heavily in favour of the media. In contrast, the law in England,
