Defamation law seeks to reconcile protecting reputation and free speech, which has long made it significant for journalism. Common law systems have taken three broad approaches to the reconciliation: the traditional law protected reputation strongly; U.S. law became much more protective of speech from the 1960s on; and more recently, most other common law jurisdictions have protected speech slightly more. Civil law systems differ in many details from the common law: the relationship between defamation and privacy is generally stronger; criminal defamation is the standard action; and litigation is comparatively speedy. Overall, however, civil defamation laws in Europe have broad parallels with many common law countries outside the United States. Varied approaches exist across Africa, Asia, and South America, with some jurisdictions having much more restrictive defamation laws in practice. In almost all instances, it remains possible for powerful interests to use defamation law strategically against critics to try to manage their reputations. Traditional defamation law has often been said to have a “chilling effect” on speech where public interest stories are not published because of fear of defamation liability. As public debate has become more valued in many societies, defamation law has evolved to protect more speech and lessen the chilling effect. The most dramatic change has been to U.S. law. Much greater burdens have been placed on public officials and public figures. These public plaintiffs need to prove what is called actual malice, which involves proving a false and defamatory fact was published that the publisher knew to be false or recklessly disregarded the likelihood of its falsity. This must be proven to a higher standard of proof than normal, or the case can be dismissed early in the litigation. The U.S. approach also provides much greater protection for opinion and comment. The requirements for public plaintiffs go much further than traditional law, where there is no requirement to prove a defamatory allegation is false, caused harm, or was published with fault. Other common law jurisdictions have developed new defamation defenses in response to the chilling effect; many now provide a defense for material that cannot be proven substantially true, but is of public interest and was published reasonably in all the circumstances. Damages are the usual remedy for common law defamation, despite long-standing calls to develop wider remedies. Their amount has long been contentious, and the risk of very substantial awards and high litigation costs for defamation in common law systems are important challenges for publishers. Under civil law systems, fines paid to the state, and even imprisonment, are possible penalties, with damages often also available to those defamed, and rights of reply to people criticized in the media also possible. Much defamation research is technical and aimed at practitioners. But empirically informed, sometimes interdisciplinary, research into defamation law, news production and media content also exists. Future challenges for defamation law and its research include the effects of Internet communication on who gets sued and where, and the role of intermediaries in relation to the content they make available.
Andrew T. Kenyon
In spite of journalism’s transnational nature, there is no common history of the subject and thus no common history of journalism in authoritarian societies, a field which can only be studied by bringing together historical facts about journalism in societies that experienced authoritarian regimes at some point in their history. Journalism in authoritarian societies is closely linked with forms of manipulation and censorship. While censorship is older than journalism, it was the rise of journalism as a profession that prompted authoritarian states to develop fully fledged censorship mechanisms and systems. The first forms of censorship of the printed word were introduced by the Catholic Church shortly after the printing press was invented in the 16th century. But it was from the 17th century on that censorship models aimed at controlling the emergent periodical press were created by absolutist monarchies. Secular institutions gradually took over censorship from the church, developing a more complex control system that would methodically check on the printed information distributed widely to the general public. While censorship systems were scrapped in most of Europe for a short period during the 19th century, the following century saw the rise of more sophisticated and repressive forms of censorship. They were developed by fascist dictatorships in several European countries and by the Soviet system in Russia. These models, particularly the Soviet propaganda system, influenced a spate of authoritarian regimes in communist nations all over the globe during the Cold War. The collapse of the Soviet Union in the early 1990s sounded the death knell of a series of authoritarian regimes, heralding an era of press freedom and independent journalism. But many regimes, particularly in the former Soviet Union, soon revived old authoritarian practices to keep their people under control. In spite of the limitations on journalistic coverage in authoritarian societies, journalists reacted in various ways to all sorts of authoritarian practices, ranging from harsh censorship systems to less intrusive, yet effective, controlling mechanisms. They did so either by seizing opportunities that appeared during more relaxed political times or by developing circumvention tools that allowed them to reach out to their audiences. The rise of the Internet brought about new opportunities for journalism to reach and engage audiences, as governments struggle to push back by designing new forms of control and censorship.
Siebert, Peterson, and Schramm’s Four Theories of the Press has been a powerful influence on scholarship on comparative press systems and normative press theories in the years since its publication in 1956. Its appeal comes from the way it combined a history of Western development with a normative schema that is simple and teachable. Critics have pointed out the shortcomings of both its historical accounts and its theoretical structure, charging that the book expressed a Cold War mentality, elided non-Western and nonliberal theories and practices, and neglected the complicating dimensions of race, class, gender, and ethnicity. Critics also note that actual press systems are usually governed by hybrid norms, and that press systems are increasingly interconnected, overlapping, and global. Yet, Four Theories of the Press retains significant influence despite these criticisms. One reason is that no real replacement has appeared and it is unlikely that a new map of normative theories will win acceptance. The work emerged at a unique moment of Western liberal global hegemony and a successor would require a similar hegemonic moment.