“Comparative Defamation Law: England and the United States”
Vincent R. Johnson
University of Miami International and Comparative Law Review
University of Miami Law School
In many respects, the relevant principles of English and American defamation law are so similar that they seem to have been written with the same pen. For example:
- “Substantially true” statements are not actionable.
- A defamatory communication must have been published to a third third person other than the plaintiff.
- Whether an assertion is defamatory is determined from the perspective of a reasonable person.
- Printers, distributors, and sellers of publications are not liable for defamation if they are unaware of a publication’s libelous content.
- In limited circumstances, liability is imposed for failure to remove a defamatory statement posted by another.
- Aggregate communications are governed by a single publication rule for purposes of the statute of limitations.
- The originator of a defamatory utterance may be responsible for damages caused by foreseeable republication, and thus the sender of a defamatory letter may be liable for publishing its contents to a third person other than the addressee who reads the letter.
- Slanderous imputations of a serious criminal offense or incompetence in business, trade, or profession may be actionable without proof of special damages.
One of the major differences between English and American defamation law relates to the governing provisions. In England, a unified body of common law and statutory principles governs all libel and slander cases. In contrast, in the United States, tort law is mainly state law, and therefore it differs to some extent throughout the fifty states and the District of Columbia. Consequently, it is sometimes easier to speak confidently about the substance of English law than to summarize the content of the corresponding American principles.
CHOICE OF VALUES
English defamation law is in many respects pro-plaintiff, whereas American defamation law is largely pro-defendant. This is true because of a choice of values. In any society, the law governing defamation reflects “the assumptions of that society respecting the relative importance of an untarnished reputation, on the one hand, and an uninhibited press, on the other.
- ENGLISH LAW IS PRO-REPUTATION, PRO-PLAINTIFF
English defamation law places a priority on protecting the reputations of potential plaintiffs. That choice is today anchored in the text of the European Convention on Human Rights (ECHR) and in the United Kingdom’s Human Rights Act. Article 10 of the ECHR, which deals with freedom of expression, provides that:
- 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…
- The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
- AMERICAN LAW IS PRO-SPEECH, PRO-DEFENDANT
In contrast to England, the United States has decided, in a wide range of cases involving matters of public interest, that free expression and vigorous public debate are often more important than compensating plaintiffs for harm caused by defamatory falsehood. “It is hardly an exaggeration to describe the United States as exceptional in its commitment to free speech as a right.” In the field of libel and slander, “dozens of rules conspire to favor defamation defendants, which means that victims of false and defamatory statements are often left without effective remedies.” Notably, “in the United States, reputation is not one of the fundamental rights protected by the Fourteenth Amendment to the Constitution.
FALSITY AND FAULT
As indicated above, England and the United States agree that a plaintiff cannot prevail in a libel or slander action based on an expressed or implied statement that is true or substantially true. However, the two countries differ as to whether the plaintiff or defendant has the burden of proof regarding the truth or falsity of the defamatory statement.
STATEMENTS OF OPINION
England and the United States both struggle with the issue of whether statements of opinion can form the basis for a defamation action. Both countries recognize that some comments cloaked in the language of opinion are really statements of fact, or imply facts, and are therefore actionable if the asserted or implied facts are false. Both countries also recognize that some comments expressing opinions are not actionable. However, England and the United States differ in where they locate the relevant legal analysis, and how they define its operative terms. This is an important difference.
In the United States, the analysis is usually part of the plaintiff’s prima facie case, for in a tort action based on expression, the federal constitution requires the plaintiff to prove that the defendant published a false statement of fact. Thus, if there is an issue as to whether an opinion was really an assertion of fact, or implied false facts, the plaintiff bears the burden of proof, and the risk of non-persuasion.
American courts have ruled that statements were incapable of implying false facts where the defendant described a physician as a“real tool” (McKee v. Laurion); called a union’s attorney “a very poor lawyer ” (Sullivan v. Conway); and characterized the chairman of an election board as a “lying asshole” (Greenhalgh v. Casey). Other American courts found that a jury could find that a statement was an assertion of fact where a talk show moderator repeatedly accused a judge of being “corrupt” ( Bentley v. Bunton); a directory described a lawyer as an “ambulance chaser” (Flamm v. American Ass’n of Univ. Women) and fictional literature labeled the plaintiff a “slut” (Bryson v. News Am.Pubs.)
In contrast, in England, the issue is normally addressed in the context of an affirmative defense, that allows the defendant to escape liability for certain statements of opinion. Thus, in England, the burden of proof and risk of non-persuasion fall on the defendant.