Defamatory Statements Research Articles

‘The Privileged Few’ and the Classification of Henwood v Harrison

This article considers the treatment of one nineteenth century English defamation decision, Henwood v Harrison, in light of Michel Foucault’s understanding of the construction of discourses. In particular, the processes of classification applied to the decision are examined. That is, the manner in which later barristers, judges, commentators and digest compilers categorised Henwood v Harrison is argued to be an example of an internal discursive control. The treatment of the decision as representing a precedent for either a broad privilege defence to defamatory statements or narrower defences of comment or qualified privilege can be seen as both representing the arbitrary nature of classification and as indicative of the changes taking place in English common law at the time.

The Ad That Changed Libel Law: Judicial Realism and Social Activism in New York Times Co. v. Sullivan

The 1964 decision by the Supreme Court of the United States in New York Times Co. v. Sullivan transformed libel law by extending constitutional protection to the publication of false and defamatory statements about public officials made without actual malice, that is, without knowledge of falsity or reckless disregard for the truth. Less well recognized is the decision's advancement of advocacy advertising and unhindered news coverage as a means to counter racism in the United States. Civil rights history, increasing visibility of advocacy advertisements and the Court's reliance on thin legal precedent suggest the decision embodies judicial realism and social activism.

Defamation Cases against Historians

Defamation is the act of damaging another’s reputation. According to recent legal research, defamation laws may be improperly used in many ways. Some of these uses profoundly affect the historian’s work: first, when defamation laws protect reputations of states or nations as such; second, when they prevent legitimate criticism of officials; and, third, when they protect the reputations of deceased persons. The present essay offers two tests of these three abuses in legal cases where historians were defendants. The first test, a short worldwide survey, confirms the occurrence of all three abuses; the second test (an empirical analysis of twenty–one cases (1965–2000) from nine western European countries) the occurrence of the third abuse. Both tests touch on problems central to the historical profession: living versus deceased persons; facts versus opinions; legal versus historical truth; the relationship between human dignity, reputation, and privacy; the role of politicians, veterans, and Holocaust deniers as complainants; the problem of amnestied crimes. The second test—the results of which are based on verdicts, commentaries, and press articles, and presented in a synoptic table—looks closely into the complainants’ and defendants’ profiles, the allegedly defamatory statements themselves, and the verdicts. All statements deemed defamatory were about such contemporary events as World War II (particularly war crimes, collaboration, and resistance) and colonial wars. Both tests amount to two conclusions. The first one is about historians’ professional rights and obligations: historians should make true, but privacy–sensitive or potentially offending, statements only when the public interest is served; otherwise, they should have a right to silence. The second conclusion concerns defamation itself: defamation cases and threats to sue in defamation have a chilling effect on the historical debate; they are often but barely veiled attempts at censorship.

MBf Capital Bhd and Another v. Dato’ Param Cumaraswamy

International organizations — United Nations — Officials — Immunity — Scope — Convention on the Privileges and Immunities of the United Nations, 1946, Article VI, Section 22 — Diplomatic Privileges (United Nations and International Court of Justice) Order 1949, Article 12 — Defamation proceedings — United Nations Special Rapporteur — Whether immune from suit — Whether alleged defamatory statements 368made in capacity as Special Rapporteur — Whether certificates issued by Secretary-General of United Nations and Minister of Foreign Affairs conclusive evidence of defendant’s immunity — Role of national courts in questions of immunityRelationship of international law and municipal law — Treaties — Immunity arising under treaty — Duty of national courts and executive — The law of Malaysia

Big Brother’s Day at the Office

With employee access to the Internet and external E-mail networks quickly becoming the norm, employers are becoming increasingly concerned with monitoring the activities of their employees at work. Figures show that 84% of the most serious frauds are committed by employees [1]. After the case of Morse v Future Reality [2] employers are justified in worrying about their exposure to sexual or racial harassment claims as a result of the downloading of pornography or circulation of distasteful jokes by E-mail. Employers are also concerned with their potential liability for defamatory statements made on their E-mail networks.

Defaming Politicians: The Not So Common Law

expression and the protection of public reputations? These questions or something like them have recently been asked of the highest appellate courts in Australia, New Zealand and Britain. Traditionally, the common law has refused to accept that a defamatory statement, not provably true, could properly be made to the world at large simply because it concerned matters of public interest. Similarly, fair comment demands that defendants show the factual basis of the comment to be true. While qualified privilege is not dependent on the proof of truth, it does require that what is said serve 'the common convenience and welfare of society.'1 What was requisite for the public benefit was narrowly construed. Conventional wisdom denied that there could be a privilege in favour of widespread political dialogue which was honest, albeit erroneous.2 Additionally, the extent of publication had to be appropriate to the occasion and no wider than necessary.3 Each of the cases under review departs from this tradition to some extent. Though they differ significantly, they broadly agree about three matters. Firstly, in modern democratic societies a freedom to communicate widely about the use of political power and other matters of public moment is essential. Secondly, the law must allow the media some margin for factual error if the exercise of that freedom is not to be unduly inhibited by the threat of having to pay substantial damages libel's so-called 'chilling' effect. Thirdly, some form of qualified privilege is the most appropriate method of securing an expanded freedom of expression while continuing to offer suitable protection to reputation.

A WEB OF LIES?: Dr LAURENCE GODFREY V DEMON INTERNET

The preliminary decision of the High Court in Dr Laurence Godfrey v Demon Internet Ltd followed by a recent out-of-court settlement has raised ISPs’ concerns in relation to their scope of duties and the defences available under English law against actions brought due to defamatory statements anonymously posted on a UseNet bulletin board. This case report looks at the wide ranging problems, compares the English court’s analysis to that of the US, and suggests some solutions.

Free Expression in the Warren and Burger Courts

Free Expression in the Warren and Burger Courts Lillian R. BeVier The three and a half decades ofthe Warren and Burger Courts—1953 to 1986—were years during which First Amendment doctrine underwent profound change. The challenge of capturing even the highlights of this change in this brief essay has required me not only to be highly selective but, with regard to the material I have selected to discuss, to paint with a very broad brush, to omit significant details, and to forego nuance almost entirely. Even more frus­ trating has been the necessity of leaving all but the barest outlines of supporting arguments on the cutting room floor, for which I beg the reader’s understanding and indulgence. The free expression cases ofthe Warren and Burger era reflected the gamut ofsocial upheav­ als that flowered during those turbulent years. Not every First Amendment case that the Court decided was an artifact of the salient controversies of those times, of course, but many were. Nor was every momentous series ofevents equally productive ofFirstAmendment controversy, but—again—many were. Considerjust four signal events: the Cold War and McCarthyism, the Civil Rights movement, Vietnam, and Watergate. First, the Cold War. When Chief Justice Earl Warren took office, the Cold War was, well, still pretty hot. McCarthyism, as embod­ ied in the Senator himself, may havejust about run its course: he was censured by his Senate colleagues in 1954 and died in 1957. Still, many in the country were preoccupied by the internal threatthat, theyperceived, communists and their sympathizers posed. These preoccu­ pations generated a variety ofregulatory efforts, the operation ofwhich in turn produced a con­ siderable volume of First Amendment litiga­ tion. Suspected communists, forexample, were prosecuted and convicted for conspiracyto vio­ late the Smith Act,1 which made it a crime to advocate forcible overthrow ofthe government, and they challenged their convictions.2 The Subversive Activities ControlAct of 19503 re­ quired “Communist Action organizations” to register, and they challenged the requirement.4 Government employees subjected to loyalty programs;5 witnesses reluctant to testify before 192 JOURNAL OF SUPREME COURT HISTORY legislative investigators;5' bar applicants denied admission for their failure to answer questions concerning communist party membership;6 veterans claiming tax exemptions but refusing to disclaim advocacy ofgovernment overthrow by force or violence;7 and teachers objecting to filing annual affidavits listing the organiza­ tions to which they belonged8—all mounted First Amendment challenges. As the Civil Rights movement gained mo­ mentum, it manifested itself in a variety of ways, and its opponents devised a number of strategies that attempted to use law to impede its progress. Many of these thrusts and counterthrusts also produced important First Amendment controversies. There were sit-ins, stand-ins, parades and demonstrations.9 The government demanded information from citi­ zens, and its demands inspired refusals to com­ ply based on claims to freedom-of-association .10 Activists organized litigation,11 and tried to raise money—and public consciousness, and in the course of these efforts made an occa­ sional defamatory and false statement offact.12 Some people burned flags.13 And always, it seemed, to goad and provoke, there was the Ku Klux Kian.14 In the late 1960s and early 1970s the Viet­ nam War occupied center stage. Controversy overUS involvement drew from a deep well of protest sentiment, which expressed itselfin ac­ tivities that gave rise to some relatively novel First Amendment claims: draft protesters burned draft cards;15 students wore black armbands to school;16 newspapers published top secret Defense Department documents that a former Pentagon official had purloined.17 Young people emblazoned their clothes with words and symbols oftheir disaffection;18 they “misused” the American flag;19 they staged skits wearing military uniforms which they had no authorizationto wear;20 and they indiscrimi­ nately addressed others using language that in days gone by would have been considered in­ sulting—to say the least.21 The Watergate scandal that so distractedthe nation in 1973 and 1974 did not directly give rise to First Amendment litigation, but indi­ rectly it did. For it was purportedly in response to the campaign abuses thatthe Watergate scan­ dal brought to light that Congress passed the wide...

Universities, Defamation and the Internet

The potential effect of defamation law on discourse over the Internet has attracted considerable comment,' in part because a high proportion of the small number of lawsuits arising out of Internet communications have involved defamation claims.2 If the threat of defamation liability becomes an important means of regulating expression on the Internet, the law of England and Wales3 is likely to play a central role in this development. London's appeal to libel plaintiffs extends beyond the shores of the United Kingdom, with potential litigants attracted by several substantive advantages afforded claimants by English law4 and by London's recent history of large damage awards and settlements in libel cases.5 English courts will usually exercise jurisdiction over cases involving parties who do not reside in Britain so long as the defamatory statement at issue is 'published' (disseminated to others) within England and Wales.6 Since virtually all statements made on the

Defamation and the Internet: What is your legal recourse if defamatory statements about you should turn up on the Internet? Judging from a recent court case, your options may be limited

Defamation and the Internet: What is your legal recourse if defamatory statements about you should turn up on the Internet? Judging from a recent court case, your options may be limited

Fair Comment by the House of Lords?

The defence of fair comment is generally regarded as the bulwark of free speech in the law of defamation. When a defamatory statement represents an expression of opinion or comment as opposed to a statement of fact, fair comment gives a complete defence provided it is proved that the opinion is fair, that it is based on facts which are true and that it concerns a matter of public interest.l In Telnikoff v Matusevitch,2 the House of Lords formulated the correct approach to determining whether a statement should be classiEled as comment rather than fact, and adopted a restrictive view. In the same case, however, the protection afforded by the defence to statements classiEled as comment has been bolstered by the adoption of a wholly objective test of fairness. In Telnikoff, the plaintiff wrote an article in the Daily Telegraph criticising the BBC's Russian Service for over-recruiting from Soviet ethnic minorities. In a heated reply published in the same newspaper, the defendant accused the plaintiff of racism. In particular, he remarked that the plaintiff had demanded that the 'BBC's Russian Service should switch from professional testing to a blood test.' The trial judge dismissed the plaintifRs claim in defamation before the defendant had given evidence, on the ground that any reasonable jury would be bound to uphold the defendant's plea of fair comment. On appeal, it was held by a majority of the House of Lords that, in determining whether a statement in the defendant's letter constituted fact or comment, the letter must be considered without reference to the original article for context. Since, on this approach, it would have been open for a reasonable jury to conclude that the defendant's statement did represent an allegation of fact, the appeal was allowed.

Public relations and libel law

This article examines the current problematic relationship between public relations and libel law in the case where corporations and their executives might want to protect their reputations by initiating a libel suit. Because of the way that courts have been applying the public figure designation to organizations and their executives, public relations and other communications activities intended to enhance the reputation of the organization and its executives may, paradoxically, undermine the ability of the organization and its executives to protect that reputation when they believe it has been libeled. A series of recent lower court decisions have found that organizations and their executives may lose their ability to seek successful redress for defamatory statements because of their public involvement, as evidenced often by communications activities of the sort public relations executives would recommend as a matter of course.

Personal Liability of Newspaper Employees for Defamation

Most legal authorities say responsibility for defamation extends to “every person who directly or indirectly publishes or assists in the publication of an actionable defamatory statement.” This article considers how much involvement in an alleged libel is required for a newspaper employee to be responsible for a plaintiff's injury, and finds that some active participation in the communication has been necessary.

Vague Defamatory Statements and the Libel Plaintiff's Burden of Proving Falsity

Vague Defamatory Statements and the Libel Plaintiff's Burden of Proving Falsity

Dhawan v. World Health Organization (No. 2)

296International organization — Officials — I.L.O. Administrative Tribunal — Types of acts which may be challenged before the Tribunal — Defamatory statements

Immunity of broadcast stations from liability for defamatory statements by candidates for public office

The year 1959 brought about two major changes in the legal responsibilities of broadcasting stations with respect to political broadcasts. The action of Congress in changing Section 315 of the Communications Act to exempt news broadcasts from the “equal‐time”; provision received the most attention. Also of importance, particularly to the local broadcaster, was the Supreme Court decision in the case of Farmers Educational and Cooperative Union v. WDAY, Inc.

Torts. Extemporaneous Defamatory Statement Made on Television Is Libel

Torts. Extemporaneous Defamatory Statement Made on Television Is Libel

Liability of Station Owners for Defamatory Statements Made by Political Candidates

Liability of Station Owners for Defamatory Statements Made by Political Candidates

Defamation by Nonfeasance: Libel and Slander. Failure of Owner to Remove Defamatory Statement from Tavern Wall Constitutes a Republication

Defamation by Nonfeasance: Libel and Slander. Failure of Owner to Remove Defamatory Statement from Tavern Wall Constitutes a Republication

Torts: Libel: Publication through Negligent Failure to Act: Duty of Property Owner to Remove Defamatory Statements from Premises

Torts: Libel: Publication through Negligent Failure to Act: Duty of Property Owner to Remove Defamatory Statements from Premises