The Globalization of Defamation
Russell L. Weaver[*]
David F. Partlett*[*]
“Globalization” has been a catchy by-word for years.[1] News reports trumpet the globalization and internationalization of the economy, and the reports are reinforced by companies that are outsourcing factories and jobs to developing countries. While the trend towards globalization has producer consumer benefits in the form of cheaper prices, and gains from trade, is a source of angst as jobs are threatened, industries restructured, and the vulnerable exposed to impersonal markets. Most recently, we have witnessed complaints about the safety of products imported into the United States. Newspapers have been filled with reports regarding lead paint in our children’s toys, and salmonella and other bacteria in our food. The U.S. Presidential primary races have revolved around contrasting arguments about the impact of globalization.
“Globalization” is not a term that one would usually mention in relation to the tort of defamation. Defamation law is rooted in the community in which an individual dwelt and garnered a reputation. Before the industrial age, the focus was limited and, prior to the printing press, its reach and its roots were very parochial. In the small village reputation is bound up with honor, and one’s ability to live and thrive turned on the protection of both. Even with greater mobility, status remained, especially as the written word extended the geographic compass. The courts became the forum for that protection when self-help, as through dueling, became socially disruptive.[2] Originally it was a jurisdiction of the local seigniorial courts. The ecclesiastical courts took jurisdiction over slander, regarding it as sin and punishing it with penance. Church and state competed, finally fixing liability in the Common law courts.[1] Finally with the invention of the printing press and the consequent threat to the state, the Court of Star Chamber punished the crime of libel to suppress seditious libels.[2] For centuries, defamation law was actionable per se and thus decidedly pro-plaintiff with limited defenses available to a defamation defendant. Moreover, if a defendant failed to prevail in a defamation suit, the defendant might be hit with a high level of costs, including attorneys fees. The net effect was that potential defamation defendants, as rational actors, were slow to publish. Some newspapers (especially in London) would, for example, hire “night barristers” to read over proposed copy and help advise them regarding potential liabilities. Books on political and public figures in Australia would likewise be vetted by London barristers for potential libels.[3]
Just as the printing press revolutionized the law of defamation in its era, the information revolution through the internet will radically impact the form and substance of defamation in the 21st century. The tort of defamation has been, and will continue to be, affected by the trend towards globalization. Just as commerce now flows relatively freely across international borders, so that no country is an “island unto itself,” the same is true for defamation and defamation litigation. Citizenship has become fluid as persons move globally.[4] The press and electronic media have international audiences, the messages are instantaneous, and the opinions are cacophonous. For many Americans, in particular, the developments are troublesome.[5]
In this short article, we trace the globalization trends in defamation law and defamation litigation. In addition, we examine how modern trends might fundamentally alter the nature of defamation litigation, and hence impact those increasing numbers of publishers sending information beyond national borders. We do conclude that speech will not be unduly chilled in the reality of a world where access is freer. We first demonstrate that the courts throughout the Western World have over the past ten to fifteen years attended to the value of free speech. The balance in defamation doctrine has been recalibrated toward more freedom in political speech. We then review the likely impact of judgments that may be adverse to the wider conception of free speech in the American law. We submit that because of enforcement obstacles, it is unlikely that any frost will descend on the exercise of free speech. Lastly, we argue that the democratization in the venues for speech on the internet will enliven speech on a global basis. Even the garrisoned and isolated generals in Myanmar (Burma) are subject to the barbs of worldwide comment and the powerful juggernaut of the Chinese state must deal with the Dalai Lama in relation to events in remote Tibet. Technology has the potential to transform our conceptions of free speech.
I. The Globalization of Defamation Standards
The first major “global” trend is doctrinal in nature. Free speech in the political setting has been closely tied to a free and democratic state. Beginning with the first amendment jurisprudence the idea of free speech has gained purchase in western democracy.[6] Moreover, defamation law has yielded to more speech-protective standards. For centuries, the law of defamation was decidedly pro-plaintiff, and pursued the objective of compensating individuals whose reputations were injured by defamatory statements. In the clash of values, reputational protection was given greater weight than freedom of expression.[7] As a result, at common law, defamation defendants were usually forced to bear the burden of proving that their statements were true, and generally had only a limited range of defenses at their disposal.[8] Publishers published at their peril, and sometimes faced the prospect of large damage awards, particularly in the context of political speech where the distribution was wide, the audience curious, and the impact significant.
The common law tradition began to give way in 1964 when the United States Supreme Court rendered its landmark decision in New York Times Co. v. Sullivan.[9] In Sullivan, the Court articulated broad constitutional protections for expression and limited the ability of public officials to recover for defamation. Sullivan was a bit quirky because it focused on the status of the plaintiff rather than on the “public interest” in receiving or hearing the expression.[3] As a result, public officials could not recover absent a showing by “clear and convincing” evidence that defendant published the statement with “actual malice.” In other words, plaintiff must show that defendant “knew” that the allegedly defamatory statement was untrue, or acted with “reckless disregard” as to whether it was true or false.
Sullivan and its progeny also provided other protections for defamation plaintiffs. Those cases shifted the burden of proof from the defendant (who was generally required to prove the truth of his assertions at common law) to plaintiffs.1[0] In a suit by a public official, the plaintiff was required to show that defendant made the statement with “knowledge that it was false or with reckless disregard of whether it was false or not.”1[1] In addition, the Court held that defamation plaintiffs must prove their cases with “convincing clarity,”1[2] and that a reviewing court must independently examine the entire record to assure that “the judgment does not constitute a forbidden intrusion on the field of free expression.”1[3] Finally, in later cases, the Court extended the actual malice standard to so-called “public figures” – individuals who do not hold public office, but are prominently placed in the public eye.1[4]
In subsequent decisions, the Court has moved, altering its defamation standard to focus more on the “public interest.” This shift did not come in a straight line. Indeed, within the Court, there has been controversy about whether the courts should focus more directly on the “public interest” rather than on the status of the defamation plaintiff. In Rosenbloom v. Metromedia, Inc.,1[5] a plurality of the Court suggested that the existence of constitutional protections should turn on whether the publication is related to the “public interest”: “[W]e think the time has come forthrightly to announce that the determinant whether the First Amendment applies to state libel actions is whether the utterance involved concerns an issue of public or general concern, albeit leaving the delineation of the reach of that term to future cases....”1[6] The difficulty with the decision was that it produced five separate opinions, and no opinion commanded a majority of the Court. In an opinion for a plurality of the Court, Justice Brennan argued that the actual malice standard should extend to defamation of private individuals when the statements concerned matters of general or public interest
But, in Gertz v. Robert Welch, Inc.1[7] the Court flatly rejected the focus on public interest:
The extension of the New York Times test proposed by the Rosenbloom plurality would abridge this legitimate state interest to a degree that we find unacceptable. And it would occasion [the] difficulty of forcing [judges] to decide [which] publications address issues of "general or public interest" and which do not.... We doubt the wisdom of committing this task to the conscience of judges. [The] "public or general interest" test for determining the applicability of the New York Times standard to private defamation actions inadequately serves both of the competing values at stake....1[8]
Even though Gertz rejected the public interest standard, that test began to color the Court’s perception of the actual malice standard and its future extensions and applications of that standard. In Gertz itself, the Court continued to focus on the status of the defamation plaintiff, and held that private defamation plaintiffs could take advantage of lower proof requirements than might be imposed on public officials or on public figures. However, in the Court’s subsequent decision in Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.,1[9] the Court distinguished between private individuals involved in matters of purely private concern, and private individuals involved in matters of more public concern.2[0] When a case involved a matter of purely private concern, a lower proof standard could be imposed.2[1]
The principles in N.Y. Times gained little traction elsewhere through much of the twentieth century. Most Commonwealth countries steadfastly clung to the notion that defamation is a necessary protection “lest good men fall prey to foul rumor.”2[2] However, in recent years, even in Commonwealth countries, with their faith in the Common Law tradition to weigh and protect rights, the balance has been shifting in favor of free expression. The trend began in the Pacific Rim. In Lange v. Australian Broadcasting Corporation,2[3] Australia’s High Court extended common law qualified privilege to cover matters related to the conduct of governmental affairs.2[4] However, the Court maintained the burden of proof on the defendant, and required adherence to a “reasonableness” standard.2[5] New Zealand followed suit in Lange v. Atkinson.2[6] In that case, New Zealand’s Court of Appeal held that qualified privilege included speech about politicians and candidates.2[7]
Britain joined the qualified privilege approach in 1999. In that year, the House of Lords decided Reynolds v. Times Newspapers2[8] and expanded common-law qualified privilege to provide special protection to the English media for reporting on matters of “public interest.” In deciding whether a publication qualifies under the Reynolds defense, a reviewing court must consider a variety of factors, including its “public importance, seriousness, urgency, overall tone and whether it included the claimant’s position – as well as matters about the information’s source, such as what steps had been taken to verify it.”2[9] Interestingly, the claim of qualified privilege failed on the facts of Reynolds. More recently, the House of Lords considered the “Reynolds privilege” in Jameel v. Wall Street Journal Europe SPRL.3[0] Their Lordships emphasized the “liberalizing intention” of Reynolds, in finding that deference ought to be given to “professional judgment of an editor or journalist.”3[1] The speeches of the Law Lords stress the flexibility that is to be accorded to responsible journalism, and that was exemplified by the Wall Street Journal.3[2] Failure to obtain the target’s comments prior to publication or disclosure of names that were subject to state secrets would not abrogate from the overall responsibility of this reporting, given the context.
In the final analysis, although the four countries have taken different approaches, the trend clearly shows movement away from the common law tradition. One country (the United States) has taken a constitutional approach to change whereas three other countries (England, Australia and New Zealand) have taken common law qualified privilege approaches (albeit using different standards). Nevertheless, the stated principle in each case involved an extension of free speech protections to defamatory speech.
At this point, it is difficult to accurately assess the impact of all of these new standards and approaches. At this point, the Sullivan standard has been tested for more than four decades, and we have clear evidence suggesting that it has had a profound impact on defamation litigation in the United States.3[3] While the U.S. media is “not oblivious to the possibility of defamation suits or the possibility of adverse judgments, [it] is far less concerned about this possibility than their English counterparts.”3[4] In the post-Sullivan era, there are virtually no defamation suits by public officials against the media, and defamation suits by public figures are relatively rare.3[5] In addition, Sullivan has generally put a significant damper on defamation litigation by other plaintiffs.3[6]
By contrast, prior to the recent extensions of common law qualified privilege, the evidence strongly suggested that both English and Australian defamation law have been slow to provide much “breathing space” for speech, and that English and Australian media outlets were deeply concerned about the potential for defamation liability.3[7] Recent extensions of common law qualified privilege yet to take root in Australia or England, where journalistic practice may lag behind the prompting of the highest courts. In Australia, the Lange standard has had very little impact on defamation litigation.3[8] The media continues to make publication decisions using the same approach, and under the same criteria, as before Lange was rendered.3[9] Similarly, in England, the impact of the extended defense of qualified privilege is difficult to gauge. Although there is some evidence suggesting that Reynolds, and subsequent cases that have begun to crystallize the privilege, may be at the threshold of influencing defamation litigation in England, it is too early to ground definite conclusions.4[0]
Nevertheless, whether the recent reforms have produced as much protection as anticipated, the global trends are solidly in favor of providing greater protection for freedom of expression. Moreover, it is important to recognize that other Commonwealth (and non-Commonwealth) countries are moving to provide greater protections against defamation liability as well.4[1]
II. Globalization and the Ability to Sue
The second major trend relates directly to the globalization of defamation litigation. There are two major trends and they cut in quite inconsistent directions. One involves the reach of jurisdiction in defamation cases. The other involves a limit on the ability of defamation plaintiffs to enforce defamation judgments in other countries.
Publications on the Internet know no national boundaries. In the well-known Australian High Court decision of Dow Jones & Co. Inc. v. Gutnick,4[2] the consequences of different national regimes are dramatically highlighted. Dow Jones published Barron’s on-line. In an October 2000 Barron’s article, Joseph Gutnick contended his reputation had been besmirched. Gutnick sued Dow Jones in the Australia state of Victoria. In answering the issue of the place of publication the Australian Court entered, as it acknowledged, a problematical arena. The answer given was that the article was published in Victoria and not solely in New Jersey under the single publication rule as Dow Jones had argued. The defendant was not able to argue the application of New York Times v. Sullivan in order to put plaintiff to the burden of showing actual malice. The law of Victoria applied as the place of publication. Note that under Australian law each download of the article in Victoria was a publication in that jurisdiction, constituting a cause of action on each occasion. Dow Jones’ pleas of impracticality and free speech restriction were considered by the High Court but could not alter what was established law. Justice Kirby bemoaned the inability of the common law to craft a solution finding unappealing the “idea that this Court should solve the present problem by reference to judicial remarks in England in a case decided more than a hundred and fifty years ago involving the conduct of a manservant of a Duke, dispatched to procure a back issue to a newspaper of minuscule circulation.”4[3]
Gutnick’s implications for traditional media, as well as for electronic media, appear potentially breathtaking in this era of global publishing. A media conglomerate who communicates from a city in the United States (e.g., New York) could be subjected to defamation liability all over the world. Since the Internet makes it quite easy for individuals from any part of the world to access and download media being “broadcast” from a single U.S. city, it is possible to hold such broadcasters liable. A media outlet that allows its content to be downloaded from distant places, could be sued in any of those places, although as we point out, incentives may be few where the damages are small.