A Law and Norms Critique of the Constitutional Law of Defamation

This article attempts to explore the unresolved debate on conflicting relationship between the right to free expression and defamation law that primarily intended to protect right to reputation. It also shows how far defamation law has been used to suppress expression and limit access to information in most countries in general and in Ethiopia in particular. To this end, the article examines the prevailing trend of manipulating strict defamation law as a method to make media deliberately inefficient and weak so that silence and intimidate journalists under the guise of protecting reputation. Above all, the central theme of this article is to assess whether or not the existing defamation law of Ethiopia comply with the international principle that urges decriminalization of defamation law. Toward this, provisions which govern acts of defamation under Ethiopian Constitution and other laws to the effect will be scrutinized. Furthermore, this article suggests how International human right principles should be contextually adopted to Ethiopia to limit abuse of defamation law. Finally, after a thorough examination of conflicting interest and the necessary balance between the right to reputation and freedom of expression under Ethiopian law context, the right way to deal with defamation law would be suggested.

When we think about areas of law that are most essential to advancing the Rule of Law in turbulent times, constitutional law and its limits on the power of government might be the first thing that comes to mind. Injury or tort law is probably not at the top of the list. Yet the law of defamation, one type of tort law, arguably played a significant role in counteracting false statements about the 2020 Presidential Election in the United States, false statements that led to a violent assault on the U.S. Capitol. Dominion Voting Systems, the manufacturer of electronic voting machines, sued Fox News for defamation based on statements asserting that Dominion rigged the election and committed election fraud. After a judge rejected several of Fox’s main defenses raised in a summary judgment motion, Fox agreed to pay Dominion $787.5 million to settle the case. This Article explains the court’s summary judgment decision. It concludes by arguing that controversial aspects of U.S. defamation law – such as the high bar of the actual malice standard and the trend against recognizing the privilege of neutral reportage – helped advance the Rule of Law in this case.

As a young man, New Zealander Geoffrey Palmer studied at the University of Chicago Law School in 1966-67. His stint in Chicago exposed him to ideas that influenced his political career. When Palmer became the deputy prime minister of New Zealand (1984-89) and prime minister (1989-90), the policies he promoted showed the influences he absorbed in Chicago. The tradition of Progressivism in Illinois led Palmer to seek good government through law reform. In 1966, Chicago’s Professor Bernard D. Meltzer taught the law of evidence to Geoffrey Palmer. The course convinced Palmer that the common law was in need of radical reform. Later, as the Minister of Justice in New Zealand, he started codifying the law of evidence. The Evidence Act was finally passed in 2006. Professor Harry Kalven Jr. admitted young Palmer to his seminar on ‘Problems of the First Amendment.’ The class fired Palmer’s interest in the law of defamation. In the mid-1970s, he was a member of a committee, which recommended ending the law of criminal libel and slander in New Zealand, which happened in 1992. The criminal law of sedition was repealed in 2007, after a New Zealand Law Commission report over which Palmer presided. The University of Chicago also taught Palmer US constitutional law. To a New Zealander, rose with the idea of parliamentary supremacy, the ability of US judges to strike down laws seemed radical. As Minister of Justice and Attorney General, Palmer oversaw the enactment of the New Zealand Bill of Rights Act 1990. During the 1967 Middle East war, Professor Soia Mentschikoff taught Palmer international law, bringing American legal realism to the subject. It was a perspective that impressed Palmer. More than 40 years later, he chaired a United Nations inquiry into the Gaza flotilla incident of 31 May 2010

This paper will firstly examine the international framework of human rights law and its guidelines for safeguarding the right to freedom of speech in the press. Secondly, it will describe the constitutional and other legal rights protecting freedom of speech in Indonesia and assess their compatibility with the right to freedom of speech under the international human rights law framework. Thirdly it will consider the impact of Indonesia’s constitutional law and criminal and civil law, including sedition and defamation laws, and finally media ownership, on the interpretation and scope of the right to freedom of speech in the press. Consideration of these laws will be integrated with a discussion of judicial processes. This discussion will be used to determine how and in what circumstances the constitutional right to freedom of speech in the press may be facilitated or enabled, or on the other hand, limited, overridden or curtailed in Indonesia. Conclusions will then be drawn regarding the strengths and weaknesses of Indonesian laws in safeguarding the right to freedom of speech in the press and the democratic implications from an international human rights perspective. This inquiry will be restricted to Indonesian laws in existence during the post-New Order period of 1998 to the present, and to the information and analysis provided by English-language sources.

The rapid expansion of digital communication has intensified public expression while simultaneously increasing the use of Article 27A of the ITE Law by state institutions to respond to public criticism, which culminated in Constitutional Court Decision Number 105/PUU-XXII/2024 that reinterpreted the phrase “other person” by excluding public institutions as victims of defamation, thereby generating significant debate regarding the balance between freedom of expression and the protection of state institutions Objective: This study aims to examine the legal status of public institutions after the Constitutional Court’s decision and to analyze the juridical implications of removing criminal protection within the framework of the principle of institutional protection in a constitutional democracy. Methodology: The research employs a normative legal approach using statutory and conceptual methods through the analysis of the Constitutional Court’s ruling, legal doctrines in criminal and constitutional law, and relevant scholarly literature on freedom of expression and institutional reputation. Findings: The results indicate that the concept of honor protected under defamation law is inherently personal and attached to individuals, not institutional entities, thus public institutions no longer possess legal standing as victims in criminal defamation cases, while institutional protection can still be pursued through civil remedies, rights of reply, and administrative clarification mechanisms. Implications: This study underscores that the removal of criminal protection for public institutions does not weaken state authority but instead strengthens democratic governance by preventing the criminalization of criticism, safeguarding freedom of expression, and promoting proportional, transparent, and rights-based mechanisms for protecting institutional credibility in the digital public sphere. Kata Kunci: Mahkamah Konstitusi, Perlindungan Hukum, Kebebasan Ekspresi.

The ‘Neutral Reportage’ Doctrine in English Law

ARTICLES LIBEL LAW AND THE PRESS: U.S. AND SOUTH KOREA COMPARED Kyu Ho Youmt I. INTRODUCTION Freedom of the press is not absolute; it must be balanced against other competing social interests. As the U.S. Supreme Court stated: [A]bsolute protection for the communications media requires a total sacrifice of the competing value served by the law of defamation. ' Legal protection against injury of a per- son's reputation is an intersubjectively reasonable transcultural goal of the law. '2 The libel law of a society, however, indicates to a large extent how that society views the relative importance of reputational interest vis-A-vis freedom of the press. In the United States, press freedom is protected as a consti- tutional right, but reputation is not. 4 First Amendment scholar Frederick Schauer has written: The American approach . . . reflects a society in which the press is considered to occupy a much more important role in the resolution of public issues. The press occupies a special position in the American system, a posi- t Associate Professor, Cronkite School of Journalism and Telecommunica- tion, Arizona State University. Author's note: The South Korea sections of this article have been drawn from revision of the author's Libel Law and the Press in South Korea: An Update, OCCASIONAL PAPERSfREPRINTS SERIES IN CONTEMPO- RARY ASIAN STUDIES no. 110 (1992). 1. Gertz v. Robert Welch, Inc., 418 U.S. 323, 341 (1974); see also Curtis Pub- lishing Co. v. Butts, 388 U.S. 130, 150 (1967). A STUDY IN 3. Frederick Schauer, Social Foundations of the Law of Defamation: A Com- parative Analysis, 1 J. MEDIA L. & PRAC. 1, 3 (1980). 4. One commentator noted: American constitutional law is distinguished by its protection of defamers, rather than the defamed. Oscar S. Gray, Constitutional Protection of Freedom of Expression in the United States as it Affects Defamation Law, 38 AM. J. CoMP. L. 463, 463 (1990). LAWRENCE W. BEER, FREEDOM OF EXPREssION IN JAPAN: CoMPARATIVE LAW, POLITICS, AND SOCIETY

Medicine and the Media: Balancing the Public's Right to Know With the Privacy of the Patient

In 2020 a “little Facebook spat” ended in a conviction for intentional libel in the Bahamas. This article explores the Court’s decision in Archer v. Commissioner of Police, holding that criminal defamation is not an unconstitutional way to protect reputations of persons in the Bahamas. The decision aligns with the earlier decision of the Privy Council in the Grenada case of Worme v. Commissioner of Police. These former British colonies share a final court of appeal, small populations, and similar protections for free expression, with exemptions for libel, and the cases involved identical statutory statements criminalizing libel. The Archer decision occurs against a backdrop of discussions in the Caribbean about the constitutionality of criminal libel laws. The author suggests that where leveraged by the powerful to prevent dissent, criminal defamation laws are despicable, but they may be a legitimate means for private victims to be vindicated when hurt by defamatory statements.

Righting the Balance: An Inquiry into the Foundations and Limits of Freedom of Expression

Perhaps the most remarkable feature of Australian constitutional development in the past decade has been the advent of the constitutional protection of political communication. One important effect of this development has been to focus Australian constitutional debate on the long standing and rich tradition of constitutional protection of speech in the United States. Reference to American constitutional law is not unprecedented. The United States Constitution has long been a source for Australian constitutional lawyers. It was extensively referred to by the framers of the Australian Constitution and over the century since the framing, it has been a constant point of reference for the High Court of Australia. However, the influence of the First Amendment is particularly significant since the Bill of Rights and the other rights provisions of the United States Constitution have traditionally been thought of as a part of the American constitutional tradition which Australia does not share. The influence of American constitutional jurisprudence, and specifically First Amendment law, in the High Court of Australia has never been more significant than in the most adventurous of its decisions on the freedom of political communication: Theophanous v Herald and Weekly Times and Stephens v West Australian Newspapers. Here, the High Court significantly expanded the protection of political communication by adopting a rule similar to the New York Times v Sullivan doctrine. That is, the Court limited the capacity of political figures to bring actions for defamation. However, most unusually for recent decisions of the High Court, these cases were reconsidered and considerably reformulated by the Court only three years after they were first announced, in Lange v Australian Broadcasting Commission. The short life of these cases appears to lend fuel to those who argue against the use of the American precedent, and specifically First Amendment jurisprudence, in interpreting the Australian Constitution. In this article, I will join those who have expressed such concerns. My focus, however, is somewhat different from previous analyses. I will consider a difference between the two systems that has been overlooked: the different jurisdictions of the highest appellate courts. The High Court, unlike the Supreme Court of the United States, has jurisdiction to hear appeals from all courts, state and federal. In hearing these appeals, it has jurisdiction over matters of common law as well as federal law and the Constitution. The significance of the High Court's role as the interpreter of the common law was highlighted by Theophanous and Stephens. In those cases, argument was addressed to the High Court on both the protection of freedom of speech by the Constitution and by the common law of defamation. Had it been so inclined, the Court could have avoided the constitutional issue entirely through a decision on the common law. However, the principal basis of the decision of the majority was the Constitution. In my view, the Court’s failure to appreciate the significance of its common law jurisdiction helps explain where the High Court went wrong in Theophanous and Stephens, and how it might have avoided facing so serious a challenge to recent cases as it did in Lange. Before proceeding to make this point, however, I devote Part I of this article to explaining the nature and origins of the High Court’s jurisdiction on matters of common law and compare it to the jurisdiction of the United States Supreme Court. In Part II, I outline Theophanous and Stephens and compare the constitutional approach of the majority to the common law approach of two of the dissenting Justices. Part III contains the heart of my argument. I consider how the High Court ought to proceed when a case before it can be decided either by the common law or by interpretation of the Constitution. I argue that the common law brings with it significant advantages so that in many cases where the two overlap, the High Court ought to prefer the common law and I use Theophanous and Stephens to illustrate my point. In Part IV, I identify more precisely the kinds of cases in which the benefits of a common law solution should lead the High Court to prefer it and defend my argument against some of the most obvious objections to it. Finally, in Part V, I consider the reformulation of the Theophanous doctrine in Lange and the extent to which that decision is responsive to the critique I have launched.

Private Concerns of Private Plaintiffs: Revisiting a Problematic Defamation Category

Defining a Public Controversy in the Constitutional Law of Defamation