American and English Libel Law – Which Approach is Best?

Michael Mc Fall


'[D]efamation is essentially an attack on reputation', by the publication of libellous statements, which identify a person or company. [1] Thus 'an action for defamation ... provides a remedy to a claimant who can prove that a publication lowers his or her reputation in the view of reasonable people.' [2] America and England have different approaches to this area of law. In fact, according to Robert Balin, 'in many ways, libel laws in the United States and England constitute mirror images of each other--with the burden of proof placed on the claimant in the United States, but on the media defendant in the United Kingdom'. [3] Their different approaches stem from how they balance the right to freedom of speech against the competing right to protection of reputation. America favours protecting free speech, whilst England favours protecting reputations. Both libel approaches have attracted criticism; America for making successful defamation suits too difficult, and England for conversely making them too easy, and enabling the proliferation of libel tourism. The issue of libel tourism has been exacerbated by the internet, in conjunction with England applying the multiple publication rule, rather than the single publication rule, like America. Internet libel has also posed the difficult question of who the plaintiff should sue; the Internet Service Provider (ISP), or the person actually behind the libellous comments? Consequently, both America and England have had to develop ways to deal with the distinct challenges raised by internet libel. However, as this article will demonstrate, America's libel law has largely dealt with the problems posed, by both traditional and internet libel, better than the corresponding English law.

[1] Samtani Anil, 'Cyberspace and the Law of Defamation: Developing a Workable Model' (2001) 7(7) Computer and Telecommunications Law Review 175, 176.

[2] Howard Davis, Human Rights Law: Directions (2nd Edn OUP, New York 2009) 425.

[3] Robert Balin, Laura Handman and Erin Reid, 'Libel Tourism and the Duke's Manservant - An American Perspective' (2009) 3 European Human Rights Law Review 303, 304.

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