The Right to Speak Ill

Based on empirical research involving interviews with defamation lawyers, as well as journalists, editors, and producers, this book provides a comparative examination of defamation liability standards and their impact on the media's ability to report on matters of public examination. The interviews span a twelve-year time frame during which there were significant developments in the affected countries (Australia, the United States and Great Britain) including extensions of qualified privilege in the Reynolds (Great Britain) and Lange (Australia) decisions.

Russell L. Weaver is a professor and Distinguished University Scholar at the University of Louisville Louis D. Brandeis School of Law. Andrew T. Kenyon is the Director of the Centre for Media and Communications Law and a member of the University of Melbourne Faculty of Law. David F. Partlett is the Dean and a professor of law at Washington and Lee University School of Law. Clive P. Walker is the Head of School and professor of Criminal Justice Studies at the University of Leeds School of Law.

Preface

xiii

Chapter 1 Introduction

3

(14)

Chapter 2 The Common Law Tradition

17

(18)

A. Libel, Slander and Procedure

18

(3)

B. The Plaintiff's Case

21

(4)

C. The Defendant's Case

25

(10)

1. Justification

25

(3)

2. Fair Comment

28

(3)

3. Privileges

31

(4)

Chapter 3 U.S. Defamation Law and the New York Times Decision

35

(42)

A. From the Framing to Garrison and New York Times: Early U.S. Libel Decisions

35

(4)

1. Incorporation

36

(1)

2. Defamation as Unprotected Speech

36

(3)

B. The Constitutionalization of Defamation: New York Times Co. v. Sullivan

39

(10)

1. The Facts

39

(4)

2. The Decision

43

(6)

C. Post-Sullivan Refinements

49

(17)

1. Further Definition of the "Public Official" Concept

50

(1)

2. The "Public Figure" Concept

51

(2)

3. "Private Individuals"

53

(8)

4. Distinguishing "Public Figures" from Private Individuals

61

(5)

D. Rejection of the "Public Interest" Standard

66

(2)

E. Application of the "Actual Malice" Standard

68

(6)

F. Fact v. Opinion

74

(1)

G. Conclusion

75

(2)

Chapter 4 1990's Australian and English Developments

77

(54)

A. The Australian Free Speech Decisions and Lange

77

(13)

1. Pre-Lange Defamation Law

78

(2)

2. The Theophanous Decision

80

(2)

3. The Lange Decision

82

(5)

4. Other Developments Related to the Law of Libel

87

(2)

5. Conclusions on Lange

89

(1)

B. Reynolds and the English Extension of Qualified Privilege

90

(41)

1. Developments Pre-Reynolds

90

(9)

2. The Reynolds Development

99

(12)

3. Measuring Up to the Human Rights Act 1998

111

(9)

4. Other Developments Related to the Law of Libel

120

(7)

i. Data Protection Laws

120

(4)

ii. Press Complaints Commission

124

(3)

5. Conclusions Regarding Reynolds

127

(4)

Chapter 5 Interview Results: England and Australia Prior to Qualified Privilege Extensions

131

(52)

A. Pre-Reynolds English Interviews

131

(19)

1. The External Perception: England's Tabloid Press

131

(7)

2. The English Interviews

138

(12)

i. Threats of Suits

139

(1)

ii. Post-Publication Suits and Threats of Suits

139

(2)

iii. Insurance

141

(1)

iv. Participation of Lawyers in the Editorial Process

141

(1)

v. The Role of Lawyers and the "Legally Admissible Evidence" Standard

142

(1)

vi. The Impact of the "Legally Admissible Evidence" Standard

143

(1)

vii. Hypothetical English Watergate

144

(2)

viii. Possible Effects of the English Standards—Cost-Benefit Calculations or More Balanced Reporting?

146

(1)

ix. Regional Newspapers

147

(1)

x. Ability to Report on Political Figures

148

(1)

xi. The Role of Privileges for Reporting Parliaments and Courts

149

(1)

xii. Ability to Report the Public Interest

150

(1)

B. The Australian Interviews: Pre-Lange

150

(30)

1. Threats of Suit

151

(1)

2. The Rate of Defamation Litigation

152

(3)

3. Responses to Threats of Suit: Pre-Publication

155

(1)

4. Responses to Post-Publication Suits and Threats of Suits

156

(2)

5. Insurance

158

(1)

6. The Motivations of Defamation Plaintiffs

159

(2)

7. Participation of Lawyers in the Editorial Process

161

(2)

8. The Role of Lawyers in the Editorial Process: Privileges and "Legally Admissible Evidence"

163

(2)

9. The Impact of the "Legally Admissible Evidence" Standard on Reporting

165

(4)

10. The Media and Particularly Litigious Individuals

169

(4)

11. A Resourceful Media

173

(2)

12. Ability to Report the Public Interest

175

(1)

13. A Hypothetical Australian "Watergate"

176

(1)

14. Australia's Cost Rules

177

(3)

C. Preliminary Conclusions: Regarding the Australian and English Media

180

(3)

Chapter 6 The American Interviews: The Impact of New York Times Co. v. Sullivan and the "Actual Malice Standard"

183

(18)

A. Suits and Threats of Suit

185

(3)

B. Responses to Suits and Threats of Suits: Pre-Publication

188

(1)

C. Responses to Threats of Suits: Post-Publication

189

(1)

D. Insurance

189

(1)

E. The Motivations of Defamation Plaintiffs

190

(1)

F. Lawyers and the Editorial Process

190

(1)

G. The Lawyer's Perspective in the Editorial Process

191

(2)

H. Particularly Litigious Individuals

193

(1)

I. Suits by Politicians

194

(1)

J. Suits by Police and Governmental Officials

194

(1)

K. Resourceful Media

195

(1)

L. Ability to Report the Public Interest

195

(4)

M. Cost Rules

199

(1)

N. Conclusions

200

(1)

Chapter 7 Interview Results: Australia Following Extensions to Qualified Privilege

201

(14)

A. Theophanous

201

(3)

B. Lange: Immediate Effects

204

(3)

C. Lange: Six Years On

207

(6)

1. Impact on the Pace of Litigation

207

(1)

2. Suits by Politicians

208

(1)

3. Suits by Police and Governmental Officials

209

(1)

4. Lawyers and the Editorial Process

209

(1)

5. Impact on Pre-Publication Advice

210

(1)

6. Uncertainties about Lange's Meaning and Application

211

(1)

7. Privileges and Legally Admissible Evidence

211

(1)

8. Impact on the Media's View of "Extremely Litigious Individuals"

212

(1)

9. The Continuing Impact of the Costs Rule

212

(1)

10. Additional Concerns

212

(1)

D. Conclusion

213

(2)

Chapter 8 Interview Results: Reynold's Impact on the English Media

215

(28)

A. Threats of Suit

215

(2)

B. The Rate of Defamation Litigation

217

(2)

C. Responses to Threats of Suit: Pre-Publication

219

(1)

D. Responses to Post-Publication Suits and Threats of Suits

220

(1)

E. Insurance

221

(1)

F. The Motivations of Defamation Plaintiffs

221

(1)

G. Participation of Lawyers in the Editorial Process

222

(1)

H. Reynolds and the "Legally Admissible Evidence" Standard

223

(3)

I. Ability to Report the Public Interest

226

(1)

J. Concerns About Reynolds

227

(6)

K. Reynolds and Particularly Litigious Individuals

233

(1)

L. Suits by Governmental Officials

234

(1)

M. Data Protection Laws

235

(1)

N. A Hypothetical English "Watergate"

236

(1)

O. Court Cost Rules

237

(3)

P. Conclusion

240

(3)

Chapter 9 Conclusions: Defamation, Free Speech and Reputation in Democratic Societies

243

(50)

A. The Common Law Approach

245

(1)

B. The New York Times "Actual Malice" Standard

246

(20)

1. Does Sullivan Spawn Costly Litigation That Intrudes into Editorial Processes?

247

(5)

2. Large Damage Claims and Large Awards

252

(3)

3. Little Protection for Reputation

255

(1)

4. An "Irresponsible" Media?

256

(3)

5. Sullivan's Focus on Plaintiff's Status is Misdirected

259

(6)

6. Conclusions about "Actual Malice"

265

(1)

C. The Lange Approach

266

(6)

1. Is Litigation under Lange Complex and Intrusive?

267

(3)

2. Cost Rules and Plaintiff and Defendant Legal Expertise

270

(1)

3. A Focus on "Political Communication" not Plaintiff Status

271

(1)

D. The Reynolds Approach

272

(17)

1. Focus on the Public Interest

275

(1)

2. Complexity and Uncertainty

276

(1)

3. Regulation of the "Tone" of Allegations

277

(3)

4. Impact of Cost Rules

280

(1)

5. Pre-Publication Restraints

281

(1)

6. Conclusions about the Reynolds Approach

282

(7)

E. Conclusion: A Final Tally and Alternative Approaches

289

(4)

Bibliography

293

(12)

Table of Cases

305

(6)

Index

311

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The Right to Speak Ill

Summary

Author Biography

Table of Contents

Supplemental Materials