Defamation Law Research Articles

Rethinking Non-Pecuniary Remedies for Defamation: The Case for Court-Ordered Apologies

Legal scholars have been encouraged to examine alternative remedies for defamation in response to an increasing criticism of monetary damages. Various types of non-pecuniary relief (such as retraction, right of reply, publication of court decisions or declaratory judgement) have been made the subject of elaborate studies. The role of court-ordered apologies as a non-pecuniary defamation remedy has been scarcely discussed in academic literature. The work that has been done focuses either on the remedial role of apologies in East Asian jurisdictions or on apologies as a civil legal remedy aimed at emotional recovery for specific kinds of harm (such as personal injury, invasions of privacy or violations of equal opportunity legislation). These studies, which mostly go beyond the scope of defamation law, pay very little attention to the Western legal tradition. The Anglo-American and continental-European legal culture are considered non-apologetic traditions, which are clearly unfamiliar with the remedy of imposing apologies. Contrary to the conventional wisdom, this article shows that court-ordered apologies are available as a defamation remedy in a non-negligible part of the Western legal tradition. This is demonstrated through a profound comparative legal analysis of continental legal systems (Western, Central as well as Eastern European jurisdictions), a mixed legal system (South-Africa) and common law systems. Simultaneously, this article allows us to gain a better understanding of why this remedy is still applied in some jurisdictions and why it has disappeared in others. The article proceeds on the premise that a case can be made for court-ordered apologies as a defamation remedy in the Western legal tradition, and accordingly, it is argued that they are worth considering in jurisdictions which do not make use (anymore) of this legal tool. First, in operating a symbolic reversal of the original defamatory assertion, court-ordered apologies are more likely to produce a shaming effect than other remedies. Second, it is possible to attribute an educative function to court-ordered apologies, allowing courts to educate members of the community about what constitutes unlawful and injurious statements. When examining the implementation of court-ordered apologies as defamation remedy, a civil-common law divide comes to the fore. Whereas apologies can be introduced in continental legal systems as a form of reparation, it is harder to import them into Anglo-American legal systems. The same goes for the reconciliation of this type of relief with freedom of expression, which is simpler to attain under the balancing test of the European Court of Human Right than in some common law systems.

The right to be forgotten: The Israeli version

The right to be forgotten and erase, originally introduced in the well-known case of Google Spain, has caused considerable legal debates on both theoretical and procedural issues. The Israeli Supreme Court has also just recently considered the issue when it was asked to enforce the right to be forgotten of an Israeli advocate, Jonathan Miller, and delist harmful information which appeared in a Google search, and was in truth related to a different adv. Jonathan Miller. The plaintiff relied on the Israeli Prohibition of Defamation Law. Liability was denied on the basis that the information was indeed true, and thus- justified. We suggest in this article that the court should have imposed liability in negligence, an open ended general tort that mainly applies when particular torts fail to supply a reasonable and just solution in new factual situations due to change in social, economic and technological circumstances.

The Right to Be Forgotten in Ireland

This chapter examines the status of the right to be forgotten in Irish law. It pays close attention to data protection law and finds that even before the coming into force of the General Data Protection Regulation (GDPR), a right to be forgotten, rooted in data protection law, was available in Irish law. The chapter also explores whether a right to be forgotten is available beyond data protection law. In doing so, it assesses whether interests in forgetting and/or being forgotten are given expression in other areas of Irish law. The chapter considers the legislation on spent convictions, defamation law and the law of privacy. It finds, however, that data protection law is the most suitable home for a right to be forgotten. The chapter also examines the limits of the right to be forgotten and the remedies available for infringement before commenting on the transparency problem in the context of search engine delisting requests.

Linking on the Internet and Copyright Liability: A Clarion Call for Doctrinal Clarity and Legal Certainty

Prompted by the decisions of the CJEU in Svensson and GS Media, this paper attempts to unmask the potential copyright liability of an internet user who engages in hyperlinking, framing and/or inline linking from a principled and conceptually coherent perspective. The overall discourse in this paper will be guided by the following two questions: It is hoped that this paper will offer a rational view of the ongoing debate (and provide sensible answers to these questions) by drawing on the established jurisprudence of the courts in Europe, the UK and elsewhere, as well as by having regard to the various interpretations of the concept of “publication” in the law of defamation (in particular, Canadian law).

FSMA and Third Party Rights: Victory for FCA in Supreme Court

This article analyses the judgment of the Supreme Court in Financial Conduct Authority (Appellant) v Macris (Respondent) [2017] UKSC 19. The Financial Conduct Authority (FCA) emerged triumphant in this appeal and the outcome has altered the fortunes of persons regulated by the City watchdog. Reversing the Court of Appeal’s judgment, the Supreme Court held by majority that Mr Achilles Macris (M) had not been identified in the Final Notice given to JP Morgan Chase (JPMC). Accordingly, any “third party rights” under section 393 of the Financial Services and Markets Act 2000 (FSMA) were not engaged because the notice did not identify M when interpreted by information readily available in the public domain. Lord Sumption found the analogy with the law of defamation to be unhelpful. Lord Mance said that this was “a difficult case” and Lord Neuberger said it was “difficult to resolve” the meaning of the word “identifies” in section 393(1)(a) despite the provision being a “good example” of Parliament’s enactment of generally lucid statutory language. In 2012, the Synthetic Credit Portfolio (SCP) operated by JPMC had lost $6.2bn because of the rogue “London Whale” trades. Because of the notorious losses the Final Notice entailed a financial penalty or “conduct costs” of £137.6m. Between 2012-2016 the world’s twenty foremost international banks paid a total of £264bn in conduct costs of which JPMC’s share was £33.64bn. As the head of the Chief Investment Office, which managed excess deposits including the portfolio comprising the SCP’s traded credit instruments, M’s functions as JPMC’s employee were “controlled functions” under section 59 of FSMA. The losses were linked to high risk trading tactics, feeble management and failing to react to information alerting JPMC to the SCP’s problems. The appeal, explained Lord Sumption, turned on the meaning of “identifies” and on the meaning of the notice to which that word is being applied. His Lordship judged that “a person is identified in a notice under section 393 if he is identified by name or by a synonym for him, such as his office or job title”. He said that it must be evident from the notice that the synonym could only apply to one person and he must be identifiable from information contained either in the notice or publicly available elsewhere. Lord Sumption explained that it is possible to turn to public information available elsewhere only where it enables the interpretation (as opposed to supplementation) of the notice’s language. The ratio of Macris was subsequently applied by the Court of Appeal in the case of FCA v Grout [2018] EWCA Civ 71 which concerned Julien Grout (G) who was one of four traders in the SCP managed by M. Putting the Supreme Court’s test into action, Longmore, Moylan and Newey LJJ held that the FCA’s notice did not identify G – who was foreign exchange trader – for the purposes section 393 of FSMA. The notice did not identify only one person, as required by the test set out in Macris by the Justices of the Supreme Court.

Silencing Bad Bots: Global, Legal and Political Questions for Mean Machine Communication

As digital automation expands across social contexts, the way in which legal systems respond when algorithms produce lies and hate presents a pressing policy problem. Search results, autofill suggestions, and intelligent personal assistants generate seemingly objective information for users in order to be helpful, efficient or fun but, as social technologies, can also produce prejudicial and false content. Chatbots and trending lists have made headlines for quickly being transformed from sweet to spiteful and political to inaccurate. As humans progressively engage with and rely on machine communication, the legality of algorithmically created information that harms the reputation or dignity of an individual, entity or group is a policy question posed and answered differently around the world. This article compares various defamation and hate speech laws through the lens of algorithmic content production – mean machine communication – and presents a set of outstanding issues that will require international and interdisciplinary attention.

Corporate reputation under the European Convention on Human Rights

ABSTRACTThis paper examines whether corporations could claim a right to reputation under the European Convention on Human Rights. The existence of such a right could have significant implications for English defamation law as it relates to corporate claimants. The analysis in this paper focuses on Article 8 and Article 1 of Protocol 1, because the European Court of Human Rights has left open the applicability of each of these Articles to the corporate interest in reputation. While the Court’s case law in both of these areas is unclear, the argument advanced here is that there is no good justification for extending a right to reputation to corporations under either Article. However, given the often-haphazard approach the Court takes to developing its interpretation of Convention rights, there is a risk that it will uncritically extend a Convention right to reputation to companies in the future.

Defamation Law in Ethiopia: The Interplay between the Right to Reputation and Freedom of Expression

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.

Doping in Sport and the Issue of Defamation in Australia: The Successful Actions

Sean Carolan and Mark French, both launched defamation proceedings in relation to comments made in the print media about their alleged involvement in doping in sport. The comments made about Carolan was in relation to his position as personal trainer with the Sydney Roosters while the comments about French were about his alleged taking of banned substances as a professional Olympic cyclist. Both were successful in their actions, highlighting the fact that defamation law can help restore the reputation of those accused in the media of being involved in doping. It is suggested these doping cases and other sport defamation cases indicate that defamation law in Australia does provide the right balance between protecting someone’s reputation and preserving a right to freedom of speech.

Is “Truthtelling” Decontextualized Online Still Reasonable? Restoring Context to Defamation Analysis in the Digital Age

This paper proposes to re-orient cyber defamation analysis towards a Civilian approach, whose hallmark flexibility and adaptability lends itself particularly well to the digital age. Indeed, harnessing the ordinary rules of negligence, and—in principle—foregoing defences, the Civilian construction is chiefly interested in the contextual reasonableness of the impugned expression (rather than in its truth or falsity strictly speaking), in contradistinction to its somewhat categorical Common Law counterpart. It is therefore recommended that defamation law evolve towards a “negligence standard” in common law parlance. Plainly put, this would require the plaintiff to make a showing of the contextual unreasonableness of impugned speech, an analysis which subsumes truthfulness and obviates the need for defences, this comporting with constitutional imperatives. Moreover and compounding the importance of revisiting the matter, “in a world where boundaries are porous and shifting” — and data is global, a cyber-publication in one jurisdiction may be read and reposted anywhere in the world, thereby potentially causing reputational harm transcending traditional or national parameters. Therefore, enforcing rights flowing from conduct originating outside of Canada increasingly preoccupies our courts who are gradually fearful of losing the ability to enforce local norms and policy or rectify domestically felt harm originating elsewhere. This preoccupation with “judicial helplessness” in Internet cases is evidenced by the notably liberalized jurisdiction test in Goldhar and Black inter alia and by two landmark cyber jurisdiction oriented cases handed down by the Supreme Court of Canada in 2017 alone. It is therefore essential to at least summarily address the jurisdiction question—if we are to have a true contextual understanding of cyber defamation as recommended herein.

Comparative Defamation and Privacy Law - Irish Perspectives

This piece is a review article of Andrew T Kenyon (ed) Comparative Defamation and Privacy Law (Cambridge University Press, 2016). In the Preamble to Bunreacht na hEireann (the Irish Constitution), the People declare that they adopted the Constitution in 1937 so that “that the dignity and freedom of the individual may be assured”. The Supreme Court has regularly drawn on this rubric to give content to the fundamental rights protected by that document. The rights to freedom of expression, good name, and privacy are crucial to the dignity and freedom of the individual; this important book explores these rights in a wide variety of contexts across a broad range of jurisdictions and its conclusions could guide the development of many aspects of the law in Ireland and throughout the common law world. This book is a collection of first class, thought-provoking essays. They will repay careful study by practitioners and academics alike. And they will be of immense comparative value for the bar, the bench, and the academy. In particular, in Ireland, in helping to tease through the challenges of balancing or reconciling the rights to privacy, reputation or good name, and freedom of expression, these essays will help to ensure “that the dignity and freedom of the individual may be assured”, and the great promise of the Preamble to Bunreacht na hEireann will be kept.

Determining Legal Responsibilities in Defamation: Crossing the Dividing Line between Real World and Internet Jurisdiction

Defamation is a recognised exception to the exercise of right to freedom of expression under the law. With the advent of the Internet, defamatory statements can be communicated or published with seamless ease and having their consequences in geographically locatable territories. The Internet as a new and more effective medium of communication compared to the traditional communication systems, like newspapers, tabloids, letters, etc. presents special challenges to the existing legal regime for traditional defamation law, which include the determination of legal responsibilities of parties involved in the defamation matter and the problem of jurisdiction -- given the ubiquitous nature of the Internet. This paper therefore seeks to address the peculiar challenges posed by this new medium, especially as to the phenomenon of ‘publication’ in determining the responsibilities of parties on the Internet and also the issue of court’s jurisdiction in internet defamation. The paper will particularly engage the laws and approaches in some countries, especially the United Kingdom, the United State of America, Malaysia, India, China, Australia, Argentina and Nigeria, to identify the similarities and dissimilarities in their defamation legal regimes; and also to review the approaches adopted in addressing internet defamation. Nigeria in particular does not have specialised legal response to internet defamation just like many other developing jurisdictions. This paper seeks to address and analyse the approaches in other jurisdictions and distil a harmonious approach that can be adopted to address the deficit created in defamation laws in some jurisdictions that do not have legal response to internet based defamation.

Internet Intermediary Liability in Defamation: Proposals for Statutory Reform

The law of defamation has long been recognized as out of step with modern tort principles. For example, the publication element requires intentionally conveying defamatory content but no authorship or even knowledge of the content is required. Thus, some have referred to defamation as strict liability. The paper re-examines the Canadian law of publication in defamation in the context of internet intermediary liability. Search engines and website hosts have been sued in defamation for content created by users. Courts have struggled with whether such intermediaries are publishers and if so, whether they have an innocent dissemination defence. The defence applies to those whose role in publication is secondary, and who have no knowledge of, and are not careless regarding the dissemination of, the defamatory contents. Instead of internet-intermediary-specific defences, which make a complicated area of the law more so, the paper proposes to modify the publication element of defamation so that it only ever applies to “primary publishers”. “Primary publishers” include authors, editors and commercial publishers. They are more immediately involved in dissemination and have or should have knowledge of the contents. Some courts have suggested that the publication element should evolve to require knowledge of specific words. However, while knowledge is necessary, it is insufficient. If a newsagent were told a newspaper contained a libel and he continued to sell it, at common law he’d be liable. If Google were told that a search result is defamatory, it might be a defamer if it failed to remove it. We argue that this should not be the case. While there should be legal mechanisms for removing certain content from the internet, and penalizing a failure to remove it, a secondary publisher’s failure to remove content should not make it liable in defamation. The proposed change will resolve many of the internet intermediary liability problems while making defamation law fairer and reflecting modern tort law’s emphasis on fault-based liability. This project is being done in conjunction with the Law Commission of Ontario’s defamation reform project.

Common virtue and the perspectival imagination: Adam Smith and common law reasoning

ABSTRACTThis paper considers the similarities between Adam Smith's device of the impartial spectator and the use of perspectival devices in common law reasoning. The paper adopts a reading of Smith's device as one involving the exercise of imaginative sympathy by an ordinarily virtuous, and culturally and historically situated, spectator who does not have a stake in the outcome of the scene being evaluated. The point here is to show that the impartial spectator is 1) a device of common, ordinary virtue – both in the sense of being located in a culture at a specific point in time, and in the sense of possessing only moderate, achievable virtues (e.g. being moderately affectively sensitive); and 2) a device that enables a focus on a situation, which requires imaginative work, emotional engagement and careful, particularised description. Having so modelled Smith's device, the paper shows the similarities between it and the use of perspectival devices in common law reasoning, specifically here via the ‘right-thinking member of society' test in defamation law.

Whistleblowing and the Law of Defamation: Does the Law Strike a Fair Balance Between the Rights of Whistleblowers, the Media, and Alleged Wrongdoers?

Abstract The Public Interest Disclosure Act only gives rights to workers and makes no mention of any connection with existing defamation provisions. However, whistleblowers and the media may have cause to fear the use alleged wrongdoers could make of the Defamation Act 2013. Having considered the human rights context, this article examines in detail whether or not current legislation strikes a reasonable balance between the rights of whistleblowers, alleged wrongdoers and the media. The author concludes that it is in society’s interest that the balance should be tilted in favour of those who make and disseminate honest allegations even if they turn out to be unfounded. Since the media play an important role in pressing for investigations of concerns that are raised and publicising the fact that wrongdoing has occurred, they too should be protected unless malice can be established.

Reputation Protection on Online Rating Sites

The 21st century has witnessed a blossoming of rating, evaluation or even blacklisting sites. Namely, teachers, lawyers and doctors are rated openly by their students, clients and patients. We are living in a ‘reputation nation,’ where our conducts are evaluated often by anonymous individuals in different aspects, entailing the dangers of shame sanctions. This reputation rating system is far from being a system of formal adjudication. It may carry false or incorrect information, and may not allow an individual to correct such information. Relying on defamation law may not be helpful to the victim targeted as the defendant maybe an anonymous individual expressing his honest opinion. Equally, invoking privacy law may be a frustrating experience when the information is of legitimate public interest and it is already in the public domain. In the absence of satisfactory legal solution and remedies, some have resorted to alternative methods of “reputation management.” What has yet to be addressed is the issue of how to develop a new procedural layout that can accommodate social norms, technological advancement and the legal right to protect reputation on online platforms. This article returns to the fundamental rationale behind the protection of reputation, and argues that reputation is an inherently social and relational concept that serves a significant signaling function in society. Drawing on judicial jurisprudence in the US and Germany on online rating sites, this article advocates for a new regime that requires online rating sites to have appropriate netiquette and information policy, including the right to reply amongst other requirements. This is essential not only to protect individual’s reputation but also for establishing a reliable system for civility.

Are We Asking Too Much from Defamation Law? Reputation Systems, ADR, Industry Regulation and Other Extra-Judicial Possibilities for Protecting Reputation in the Internet Age: Proposal for Reform

This research paper examines the question of whether we are asking too much of defamation law in a three-part paper focused on reputation, resolution and recommendations. The focus is on online defamation law. However, the kinds of resolution mechanisms explored in this paper potentially have a wider application. The research is couched in a broad internet governance framework, which is the backbone of my scholarly focus, and seeks to test what it would look like if various remedial mechanisms were deployed or incentivized through provincial legislation. The question is whether any such mechanisms improve access to justice or resolution for those who suffer reputational harm from online defamation. In other words, this paper seeks to answer the following question: given the reputational harms suffered in the digital age, what kinds of dispute resolution mechanisms would improve access to justice and resolution to complainants? This paper was commissioned by the Law Commission of Ontario as part of its project Defamation Law in the Internet Age.

Defamatory meanings and the hazards of relying on the ‘ordinary, reasonable person’ fiction

Defamation law offers a remedy when the plaintiff’s reputation is harmed by something the defendant publishes. At the heart of the action lies the question—what do the words complained about actually mean? The process of determining defamatory meaning depends heavily on what the court finds to be the imputations conveyed by the matter concerned to ‘ordinary, reasonable people’. The process relies on assumption and conjecture, rather than on evidence. This article examines how this process applied in the Hockey v Fairfax Media case brought by Australia’s former Federal Treasurer Joe Hockey against Fairfax Media, which presented a paradox—the court described the journalists’ articles concerned in glowing terms but still found for the plaintiff.

Data associations and the protection of reputation online in Australia

This article focuses upon defamation law in Australia and its struggles to adjust to the digital landscape, to illustrate the broader challenges involved in the governance and regulation of data associations. In many instances, online publication will be treated by the courts in a similar fashion to traditional forms of publication. What is more contentious is the question of who, if anyone, should bear the responsibility for digital forms of defamatory publication which result not from an individual author’s activity online but rather from algorithmic associations. This article seeks, in part, to analyse this question, by reference to the Australian case law and associated scholarship regarding search engine liability. Reflecting on the tensions involved here offers us a fresh perspective on defamation law through the conceptual lens of data associations. Here the focus of the article shifts to explore some wider questions posed for defamation law by big data. Defamation law may come to play a significant role in emerging frameworks for algorithmic accountability, but these developments also call into question many of its traditional concepts and assumptions. It may be time to think differently about defamation and to consider its interrelationship with privacy, speech and data protection more fully. As a result, I conclude that the courts and policymakers need to engage more deeply and explicitly with the rationale(s) for the protection of reputation and that more thought needs to be given to changing conceptions of reputation in the context of data associations.

Reflections on Judicial Views of uBuntu

Since S v Makwanyane, ubuntu has become an integral part of the constitutional values and principles that inform interpretation of the Bill of Rights and other areas of law. In particular, a restorative justice theme has become evident in the jurisprudence that encompasses customary law, eviction, defamation, and criminal law matters. This contribution explores the scope and content of ubuntu, as pronounced on by the judiciary in various cases, and demonstrates that its fundamental elements of respect, communalism, conciliation and inclusiveness enhance the constitutional interpretation landscape. Two major epochs are highlighted in the development of ubuntu, marked by the constitutional decisions in Makwanyane and PE Municipality respectively. The former carved the central avenue of development for ubuntu, while the latter marked the start of the thematic development of the concept in the direction of restorative justice. Furthermore, the article engages critically with the use of ubuntu, with criticisms levelled against the conceptualisation of ubuntu as a legal notion, ranging from its ambiguity to its redundancy, to perceptions of dichotomies, and issues of exclusion. The paper also questions the manner in which the courts have applied the legal concept of ubuntu uncritically, without reference to African sources to illustrate its meaning in different contexts, and without questioning its compatibility with the Bill of Rights. Finally, it attempts to reveal the connections between ubuntu and the values underlying the Bill of Rights.