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date: 23 October 2020

Abstract and Keywords

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.

Keywords: defamation, free speech, journalism, law, libel, media freedom, media law, press freedom, journalism studies

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