Defamation Law Research Articles

Translated Memorandum: Expert Witness Statement on the Law of Defamation Against the Monarchy in Foreign Countries

The expert witness statement was requested by the Constitutional Court in the proceedings between Mr. Teerayut Suwankesorn (Petitioner) and Mr. Pita Limjaroenrat, leader of the Move Forward Party (First Respondent) and the Move Forward Party (Second Respondent). The proceedings concluded with Constitutional Court Judgment No. 3/2567. The statement is dated 8 December 2022. Translation by Ronnakorn Bunmee.

SHOULD A COMPANY’S DIGNITY BE PROTECTED UNDER SECTION 10 OF THE CONSTITUTION? THE QUESTION IN Reddell v Mineral Sands Resources (Pty) Limited [2022] ZACC 38

In Reddell v Mineral Sands Resources (Pty) Ltd ([2022] ZACC 38) (Reddell), the Constitutional Court considered whether section 10 of the Constitution of the Republic of South Africa, 1996 (the Constitution), as read with section 8(4), should be interpreted to protect the dignity of juristic persons (in this case, mining companies). The majority and minority judgments arrived at conflicting decisions on the point. Unterhalter AJ, for the minority, held that juristic persons should be protected under section 10, while Majiedt J, for the majority, held otherwise. The majority also developed the common law of defamation to limit the circumstances in which a juristic person may succeed in a claim for general damages for non-patrimonial loss.The authors make two claims. First, it is argued that the minority judgment correctly interpreted the nature and purpose of section 10 (the guarantee of human dignity) when read with section 8(4) of the Constitution, which provides that juristic persons are entitled to bear the rights in the Bill of Rights as required by the nature of the right and the nature of the juristic person in issue. It is asserted that the two sections can be interpreted to entitle companies to rely on section 10 of the Constitution to protect their right to dignity, encompassing their good name and reputation. Secondly, it is argued that the majority’s development of the common law of defamation – to create a special exception for cases where a juristic person sues for general damages – was unnecessary, and has created legal uncertainty.The case note proceeds as follows. First, the authors introduce the facts of the case, and then explore the ratione decidendi of both judgments. Secondly, the note addresses the ambit and scope of human dignity as a constitutional right, followed by the applicable principles governing constitutional interpretation, including the role of the heading of a statutory provision. This is followed by a discussion of the law of defamation concerning whether a juristic person can claim damages for an infringement to its reputation under the actio iniuriarum. The legal position prior to the judgment in Reddell is compared to that which now applies. Finally, the decision is evaluated with reference both to the reasoning used by the majority and minority respectively and the significance of the outcome of the case for our law.A detailed discussion of the constitutionality of awarding general damages to corporations for defamation on the basis that such claims unjustifiably limit section 16 of the Constitution (the right to freedom of expression) falls outside the scope of this case note.

Defamation Law Basics: Understanding Slander and Libel in the Indian Perspective

Defamation Law Basics: Understanding Slander and Libel in the Indian Perspective

The Only Path to Justice: The Criminal Legal System and Defamation Judgments Related to #MeToo in Sweden

This article presents a study of court judgments involving women who, in connection with #MeToo, identified alleged perpetrators of sexual violence in social media and were later prosecuted for and convicted of criminal defamation in Sweden. We conceptualise the use of social media to share experiences of sexual violence as an informal path to justice. First, we show that this is supported by how court judgments describe women’s reasons for sharing their information, such as telling their story and sharing it with others. Second, according to Swedish defamation law, a truth defence is allowed only if the defamatory statement is first considered to be justifiable, balancing between the defendant’s interest of freedom of speech and the complainant’s interest of honour and reputation. We show that the courts did not assign the interest of speaking out about sexual violence such a significance that it would make the statement justifiable. In effect, the criminal justice system emerges as the only path to justice for victims of sexual violence, simultaneously making perpetrators invisible and victims responsible for telling without naming.

Aesthetic Verdicts

This article examines the landmark 1878 defamation case of Whistler v Ruskin, a pivotal legal battle that underscored the complexities of adjudicating art criticism under defamation law. The trial arose from John Ruskin’s scathing critique of James McNeill Whistler’s work, which led Whistler to sue for libel, seeking validation not just of his art but of his artistic philosophy. Despite the public fascination and Whistler’s tactical use of the trial as a platform for self-promotion, the jury’s award—a derisory farthing—hinted at their view of the lawsuit as frivolous. This case emphasizes the intrinsic challenge of legal systems grappling with subjective art valuation and critiques, the evolving norms of defamation, and the implications for the freedom of speech. While Whistler nominally won, the repercussions for both men were significant, affecting their finances, reputations and positions within the art world, and the trial’s legacy continues to inform the discourse around art, law and cultural value. Keywords: James McNeill Whistler; John Ruskin; Victorian libel law; defamation; art criticism; aesthetics; 19th-century British art; fair comment.

SLAPPs: What are they? And how should defamation law be reformed to address them?

ABSTRACT This article examines the need for legislative reform to address the problem of strategic litigation against public participation (SLAPPs), with a focus on defamation law as the most common action for such claims. It draws upon legislative and judicial approaches from a range of different jurisdictions to define the problem of SLAPPs and examines whether the existing law in England and Wales provides an adequate solution to the problem of SLAPPs. This analysis indicates some important recent developments in the law that are relevant to SLAPPs but concludes that legislative reform is necessary to address the problem of SLAPPs. In contrast to the current proposals for reform, the article proposes an anti-SLAPP provision that crystallizes and builds upon recent developments in the law, to effectively address the problem of SLAPPs without posing an unnecessary risk of the denial of innocent claims.

Blasphemy laws contra defamation laws: An anomaly facing rational choice theory

The standard rational choice theory is based on utilitarian grounds and, consequently, treats all preferences (utilities) as commensurable. Hence, it should treat substantive pain, that is, the loss of reputation/income resulting from defamation, as equivalent to dignity loss, that is, the loss of sense of worthiness/morale resulting from blasphemy such as slurs and insults. However, theory faces an anomaly: it cannot explain why those countries that enact defamation laws are hesitant enacting blasphemy laws. This paper solves the anomaly by finding that substantive pain, on the one hand, and dignity pain, on the other, are incommensurable. Substantive pain is definite, while dignity pain is context-dependent as it can be zero if the leveler of the insult is a child, an unstable person, or a person regarded of low-worthiness. Thus, we need to modify rational choice theory to account for the incommensurability between the two kinds of pain (that is, two kinds of utility) and, corollary, why defamation laws do not usually entail blasphemy laws.

Hard Truths: Libel by Implication Doctrine and the Need for a Uniform Standard

Since the inception of the tort of libel, claims against the media have created a tension between the First Amendment’s commitment to a free press and the desire to prevent reputational harm to individuals. Further complicating the issue are cases in which plaintiffs allege that literally true statements are defamatory based on implications created through juxtapositions or omissions of facts. This is known as libel by implication, a tort currently governed by states through a patchwork of varying standards and interpretations. Not only does the lack of uniformity leave journalists without due notice of the law in the jurisdictions they are reporting on, but also it encourages forum shopping by plaintiffs and attacks against the media. A solution is critical: libel by implication claims have become increasingly popular with politicians seeking to dispel criticism — precisely the speech the First Amendment was intended to protect. To best protect crucial reporting in an era of animus towards the press, this Note argues that states need to adopt a uniform standard for governing libel by implication that requires a showing that (1) the implications of the article are false and (2) the journalist acted with actual malice in publishing them. “I imagine it’s no surprise by now that many courts and commentators have complained that defamation law is a ‘quagmire,’ lacks ‘clarity and certainty,’ is ‘overly confusing’ and ‘convoluted,’ leaves courts ‘hopelessly and irretrievably confused,’ and ‘has spawned a morass of case law in which consistency and harmony have long ago disappeared.’” Dallas Morning News, Inc. v. Tatum, 554 S.W.3d 614, 643 (Tex. 2018) (internal citations omitted).

Challenges of the Right to Fame and the Consequences of Its Violation in the Iranian Legal System

The right to fame, though increasingly relevant in today’s digital age, remains underdeveloped within Iran’s legal framework. This article explores the challenges and consequences of violating the right to fame in Iran, where legal protections are primarily derived from defamation and privacy laws, lacking explicit recognition of fame as a protectable legal right. By employing a descriptive analysis method, the article examines the existing legal provisions, key cases, and the interaction between fame, media law, and freedom of expression in Iran. A comparative analysis with legal systems in the United States and the European Union reveals significant gaps in Iran’s approach, particularly in addressing the economic and commercial exploitation of public personas. The study identifies legal loopholes, inconsistent enforcement, and the complexities introduced by the digital age as key challenges. Recommendations for reform include the formal recognition of fame as a distinct legal right, the introduction of specific legislation to regulate the commercial use of fame, and stronger enforcement mechanisms. The article concludes by emphasizing the need for comprehensive legal reforms to protect individuals from unauthorized exploitation of their fame, aligning Iran’s legal system with international standards in an increasingly digital world.

Analisis Pencemaran Nama Baik Artis Bunda Corla Dan Penyalahgunaan Hak Kebebasan Berpendapat Di Media Sosial

Today's era of globalization has become one of the media used to express opinions or views. Freedom of opinion, especially on social media, is currently widely misunderstood and abused by the public, because in exercising the right to freedom of opinion, many people carry out actions which result in insults, accusations without evidence and defamation which causes loss, hurt feelings, Mental health even has an impact on suicide situations for certain individuals and groups. The problem in this research is that many social media users give opinions or views that the female artist with the real name Chintya, who is an Indonesian citizen living in Germany or better known as Bunda Corla, is a transgender. This was conveyed clearly on social media Instagram and Tiktok without supporting evidence. This is an activity of defamation, an attempt to influence other people to believe in their opinions or views to the detriment of one party. If we look at the criminal law and violations of the misuse of the right to freedom of expression on social media and the criminal sanctions for criminal acts of defamation under the guise of freedom of opinion, this already refers to 3 crimes, defamation, unpleasant acts and violations of human rights. . Persons involved in defamation cases can be charged with criminal penalties for acts of insult and/or defamation on the internet. Especially for internet users, criminal threats through Article 27 paragraph (3) in conjunction with Article 45 of the ITE Law. Through this provision, internet users can also be subject to coercive measures considering the maximum penalty is 5 years in prison. The method used in research is the literature method, data collection techniques in the form of documentation and observation. Data from observations is in the form of screenshots from social media. The results of this research show that; comments on social media are included in several violations of existing laws in Indonesia, the ITE Law article 45 paragraph 1, the Defamation Law articles 310 and 311 of the Criminal Code; Threat of Criminal Defamation in the ITE Law Article 27 paragraph (3) in conjunction with Article 45. Source of material Instagram, TikTok, primary and secondary law. This research concludes that freedom of opinion is not absolute freedom, but rather, opinion must be in accordance with ethics and norms in society and in accordance with legal regulations without harming any party. and these unpleasant acts can be prosecuted in accordance with applicable legal provisions. Freedom of opinion on Instagram and Tiktok media aimed at Mother Corla has been proven to be defamation.

A Century of JMCQ Legal Issues in Media: Scholarly Commitment to Free Press, Free Speech, and More

This systematic review of more than 300 Journalism & Mass Communication Quarterly (JMCQ) articles on media law since 1924 documents what a vital scholarly outlet the journal has been and continues to be for research on freedom of the press and speech. While defamation law remains a popular topic, journalism and mass communication scholars have expanded their focus to a wider range of media law issues, including privacy, copyright, student speech, journalistic privilege, free press v. fair trial, advertising, and issues involving other media. JMCQ has been refreshingly open to international and comparative law, moving away from a U.S.-centric approach to media freedom. The review highlights a decline in the number of media law articles published in recent years, possibly due to competition from alternative journals, manuscript length limitations, and the APA-style requirement. Nevertheless, media law scholarship remains essential, offering invaluable insights into the evolving legal landscape of media.

The Evolution and Devolution of the Offer to make Amends Regime in Australian Defamation Law

The Evolution and Devolution of the Offer to make Amends Regime in Australian Defamation Law

The Devil’s in the Details: How Countries’ Defamation Laws Can (and Can’t) Combat Hate Speech

ABSTRACT Despite the multitude of efforts to combat hate speech, it persists within our global media discourse. It appears in legacy news media content, right-wing media outlets, and social media. In some countries, defamation laws are used to punish those who publish false, defamatory statements about a group defined by its racial, religious, or national origin, gender identity, or sexual orientation. Recognizing the potential role civil defamation laws can play in mitigating the problem of hate speech in media, this article offers a comparative legal analysis of existing defamation laws in Brazil, Germany, and the United States. The purpose of this inquiry is to determine whether and to what extent victims of hate speech might be able to employ these laws to seek justice. Our analysis indicates that criminal libel laws are often abused by political actors, and thus civil laws are preferred. Based on Germany’s experience, we also find that social media platform compliance with this process is essential. Therefore, we propose a solution that expands U.S. libel law to include group defamation and uses carveouts to CDA Section 230 to motivate platform participation in identifying and removing group libel.

Public official as a victim of criminal insult and defamation: Comparative Research

The paper analyzes various issues relating to criminal liability for insulting and defaming a public official in several jurisdictions. The objective of this study was to clarify, by comparative reference to the criminal laws of various countries, whether insult and defamation constitute a crime or are perceived as non-criminal conduct. Based on the provisions of criminal legislation and international case law, as well as the case law of the European Court of Human Rights, the fine line between the fundamental principle of freedom of expression and abusive insults (defamation) has been demonstrated. It has been concluded that both public officials and private citizens can be victims of defamation and insult, which can give rise to criminal liability in some states. The specific models of such liability differ significantly. Based on our analysis of legislative and enforcement approaches in various jurisdictions, it is concluded that some countries vigorously protect both public officials and lay citizens from insult and defamation, while other states rely more on the broad principle of “freedom of expression”.

MEDIA LAW IN THE COMMONWEALTH OF AUSTRALIA: CURRENT TRENDS IN DEVELOPMENT

In the modern era, the not at all new maxim that information rules the world is getting a new, this time “digital-platform” confirmation of its truth. With the emergence of global online platforms in the 1990s, the categories of “freedom of speech”, “freedom of mass information" and “freedom of self-expression”, while gradually changing the technological formats of their embodiment and implementation, keep their democratic essence and role in the processes of personal, public and state development unchanged.
 As humankind enters its next information cycle, roughly covering the first decades of the 21st century, institutional and regulatory potential of the historically “youngest” information and communication freedom — the freedom of web-based (online) information and communication — is gradually taking shape, gaining institutional and regulatory potential. Like its antecedents (freedom of speech, press, radio and television broadcasting), it requires a certain upgrade of its social regulatory mechanisms as it “matures” and enters into the life of global, national and regional societies.
 It is the context of the implementation of this kind of innovation on the example of a specific country — Australia — that determines the basic subject of this article, its main essential component. Specific and topical manifestations of this essence are analyzed by the authors of this article using examples of legal and other regulatory systems in the Australian media sphere. For example, one of the subjects of analysis is the question of how is Australia coping with the challenge of updating its social regulatory mechanisms in the media sphere. And, as a logical consequence of the former, is there any position in Australia's relevant experience that is worthy of reception in other legal and ethical orders?
 Focusing on these issues the authors review some of the most interesting decisions taken by the Australian government over the past decade. The authors also analyse the current law and other regulatory mechanisms and instruments in Australia aimed at regulating the mass media public relations in this country as well as the main trends of their development. In particular, such as pioneer (Australia is a recognised pioneer in this sphere of legal regulation!) changes in the regulation of digital media platforms on the example of Google and Facebook (from October 28, 2021 — Meta Platforms, Inc. in Russia, admitted as extremist organization by the Moscow Tverskoi Court), and quite specific modifications of Australian national defamation law.

International Adjudicatory Jurisdiction and Governing Law of Defamation - Based on Relevant Cases of Japanese Courts -

International Adjudicatory Jurisdiction and Governing Law of Defamation - Based on Relevant Cases of Japanese Courts -

The Credibility Effect: Defamation Law and Audiences

The Credibility Effect: Defamation Law and Audiences

An Unreasonable Standard?: The Dilemma of Applying Actual Malice to Irrational Speakers

Several defamation cases stemming from apparently irrational statements are testing the boundaries and standards of defamation law. The constitutional standard for defamation of public figures, actual malice, is based on the speaker’s knowledge that a statement is false or their reckless disregard for whether it is true. An irrational speaker who believes their statement is true confounds this test. This article delineates aspects of defamation law that are challenged by an irrational speaker and concludes with a recommendation to include a stronger “objective” element in the application of the actual malice standard to such cases.

Thailand in 2022

Thailand’s military-aligned government saw its popularity plummet in polls throughout 2022. Yet former head of the armed forces and current prime minister Prayut Chan-o-cha was resilient in the face of mass party defections, a falling-out with his fellow party leader and long-time friend Prawit Wongsuwon, a censure debate, and even a constitutional court case threatening to remove him from office. The mass street protests that were a constant feature of the previous three years evaporated as conservative forces used the controversial Section 112 Royal Defamation Law to silence the various movements’ leaders. Political attention was focused on the impending elections, which shook up the party system with rampant party mergers and switching. Meanwhile a return to the 2011 electoral rules fueled talk of another Pheu Thai landslide in the next elections. The economy began to improve with the relaxing of COVID rules and the return of tourism, throwing a lifeline to a rapidly sinking Prayut, who himself switched to a new political party before the year’s end.

‘Mind-forg’d Manacles’: Virtual Experience and Innocent Publication

In Fairfax Media Publications Pty Ltd v Voller (‘Voller’) the Australian High Court held that media companies maintaining Facebook comment pages could be liable for the defamatory posts of commenters on those sites. The decision focussed entirely on whether, by maintaining the Facebook page, the companies had ‘published’ the statements of commenters. Hearings on other aspects of the tort litigation continue. This paper considers the implications of the tort of defamation on public participation on political will formation where, as is increasingly the case, the participation occurs virtually. Australian law has already tackled the law of defamation as a threat to freedom of political communication; Voller continues the jurisprudence by considering whether hosting an online forum for debate amounts to publication. The more recent High Court judgment in Google LLC v Defteros demonstrated the necessity of the law to align the ‘acts’ necessary to found legal action with the new environment of automated search engines. The troubled intersection of dematerialised practices of political and cultural discourse and jurisdictionally bound laws of defamation challenges participatory governance as tribes form and dissolve and shift between geographical interests.Defamation in Australia is a tort of strict liability; and, absenting applicable defences, any participation in communication is sufficient to make that participant a publisher and a party to the defamation. The online environment stretches words across geographical and jurisdictional boundaries, but it also stretches and contorts concepts of fault and responsibility. Participatory digital cultural practices integrating users in the creation of cultural heritage simultaneously draw participants into transgressions, both cultural and legal, which are amplified by the medium. Questions of collective guilt, ‘shades’ of moral responsibility and disproportionality between blameworthiness and legal liability challenge laws formulated for the printing press but now deployed in the online environment. In this way the digitized participatory environment presents deep challenges to law and legal systems, which are chained to geography. This paper considers the concept of innocent publication in the context of the digitized participatory environment and the way in which the virtual experience is dissolving concepts of geographically defined jurisdictions.