Teaching and Learning Resources

Centre for Communication Governance

Webworks by webcontxt
Home

Defamation (Citizens, Society and the Media)

Close

Curator: Divya Srinivasan, Student, B.A., LL.B. (Hons.),National Law University, Delhi

Email us your feedback

DEFAMATION THEORY

Article 19, Defining Defamation: Principles on Freedom of Expression and Protection of Reputation, International Standards Series, July 2000 [Open Access]

These Principles have been formulated by Article 19, based on international laws and standards, in order to set out an appropriate balance between the human right to freedom of expression and the need to protect individual reputations. In particular, they set out standards of respect for freedom of expression to which legal provisions designed to protect reputations should, at a minimum, conform.

Van VechtenVeeder, The History and Theory of the Law of Defamation, 3(8) Columbia Law Review 546 (1903) [Paid Database]

Veeder traces the history of the law of defamation, before going on to decry the “grotesque anomalies” of defamation law, in charting the development of libel and slander from the time of the ecclesiastical courts. In locating the modern law of defamation, he finds that compensating harm to reputation was not the original purpose of the law of defamation – slander actions were proscribed by ecclesiastical courts to protect the soul of the slanderer, while libel actions were created primarily as a means of protecting the government from the power of the printing press.

Stanley Ingber, Defamation: A Conflict between Reason and Decency, 65 Virginia Law Review 785 [Paid Database]

This article argues that the protection of Freedom of Speech and Freedom of Press is a reason interest that conflicts with the decency interests protected by the law of defamation. It demonstrates that the Courts’ present approach to the problem has succeeded in fulfilling neither of the interests, and presents a new model for handling the various interests involved in defamation.

Alfred Hill, Defamation and Privacy under the First Amendment, 76(8) Columbia Law Review 1205 (1976) [Paid Database]

This article explores the interaction between defamation law and the right to privacy, and discusses the development of case law in this regard. However, it notes that case law has only addressed a narrow field regarding protection of media defendants, and proceeds to discuss defamation issues not addressed by the Court, inter alia, media activities other than the  presentation of “news” and comment thereon; defamatory opinion generally; aspects of fault not yet considered by the Court; and defamation by  individuals not performing a media function, particularly when the persons  defamed are not public figures.

Joel D. Eaton, The American Law of Defamation through Gertz v. Robert Welch and Beyond: An Analytical Primer, 61(7) Virginia Law Review 1349 (1975) [Paid Database]

This Article analyzes the development of the American law on Defamation, and the purposes served by such law, both before and after New York Times v Sullivan. It discusses the varied treatment given to different classes of plaintiffs such as public figures and private individuals, and also specifically analyzes Gertz v Robert Welch.

W. Page Keeton, Defamation and Freedom of the Press, 54 Texas Law Review 1221 (1975-1976) [Paid Database]

This article compares the English and American defamation principles, including the various privileges to defame and defenses to liability. The author suggests that the law of defamation can be simplified without upsetting the proper balance between protecting personal reputations and encouraging the free interchange of ideas. To recover for defamatory falsehoods, Keeton argues, all plaintiffs should have to demonstrate that defendants knew of the falsity of their statements or had no reasonable basis for believing the statements to be true.

Bonnie Docherty, Defamation Law: Positive Jurisprudence, 13 Harvard Human Rights Journal 263 (2000) [Paid Database]

This article argues that in recent years, national and international courts have developed a body of case law that seeks to reduce defamation’s infringement on freedom of expression. The decisions of various Courts exhibit noteworthy trends in legal change and frequently refer to each other as persuasive precedent. This Article presents an overview of such positive jurisprudence and focuses on decisions from international, Commonwealth, and United States courts.

Robert C. Post, The Social Foundations of Defamation Law: Reputation and the Constitution, Yale Law School Faculty Scholarship Series (1986) [Open Access]

This article explores three distinct concepts of reputation that the common law of defamation has at various times in its history attempted to protect: reputation as property, as honor, and as dignity. The Article concludes that reputation is not a single idea, but is instead a melange of several different concepts. Each concept demands its own constitutional analysis. The author believes that distinguishing between these concepts of reputation is essential is ensuring that defamation law is constitutionally applied.

David S. Ardia, Reputation in a Networked World: Revisiting the Social Foundations of Defamation Law, 45 Harvard Civil Rights-Civil Liberties Law Review 261 (2010) [Open Access]

This article argues that it is time to rethink defamation law in order to ensure it suits modern times. It argues that defamation law suffers from significant doctrinal and practical limitations that preclude it from achieving its goal of protecting reputation. Cognizant of these limitations, it offers some guidelines for reforming defamation law, suggesting that existing monetary remedies should be deemphasized while alternative approaches that seek to correct inaccurate information and provide opportunities for contextualization should be emphasized.

International Material

Christopher J. Kunke, Rome II and Defamation: Will the tail wag the dog? 19 Emory International Law Review 1733 (2005) [Open Access]

This Article explores the effects of the European unification of conflict-of-laws rules under Rome II and reexamines the particular choice-of-law tension that defamation poses. It also discusses the legislation’s potential impact on English law, and concludes that a balance between flexibility and certainty is required.

Article 19, International and Comparative Standards on Defamation, Briefing Note, February 2004 [Open Access]

This Briefing Note provides an overview of pertinent international freedom of information standards that directly relate to defamation. It draws on international and comparative jurisprudence, as well as authoritative standard-setting statements by international bodies.

CDMSI, Study on the alignment of laws and practices concerning defamation with the relevant case-law of the European Court of Human Rights on freedom of expression, particularly with regard to the principle of proportionality, 2012 [Open Access]

This report, prepared by the secretariat of the Steering Committee on Media and Information Society (CDMSI) of the European Council, investigates, among other things, the case-law of the European Court of Human Rights (“the Court”) on freedom of expression in the context of defamation cases and reviews Council of Europe and other international standards on defamation. It contains information on the legal provisions on defamation in various Council of Europe member states. It also attempts to identify trends in the development of rules on defamation, both in national legal systems and in international law.

Case Law

Human Rights Committee, Communication No. 1815/2008, 10 January 2011

In this case, the Human Rights Committee recalled that General Comment 34 of the ICCPR urged member States to consider the decriminalization of defamation, and in case, that the application of criminal law must be countenanced only in most serious of cases and imprisonment was never an appropriate penalty. The Committee held that the imprisonment of a radio broadcaster for allegedly defamatory statements to be excessive.

Comparative Material:

StijnSmet, Freedom of Expression and the Right to Reputation: Human Rights in Conflict, 26(1) American University International Law Review 183 (2010) [Open Access]

This article examines the conflict between Freedom of Speech and Right to Reputation, particularly analyzing the legal reasoning of the European Court of Human Rights’ with regard to the conflict between these human rights. After a comprehensive study of the cases decided by the ECtHR, the article identifies the various doctrines evolved by the Court in order to solve this conflict. However, the paper concludes that the Court’s legal reasoning suffers from a lack of clarity, consistency, and transparency.

Jo M. Pasqualucci, Criminal Defamation and the Evolution of the doctrine of Freedom of Expression in International Law: Comparative Jurisprudence of the Inter American Court of Human Rights, 39 Vanderbilt Journal of Transnational Law 379 (2006) [Paid Database]

The Article critiques the contributions made bythe Inter-American Court of Human Rights to the growing international jurisprudence on freedom of expression. It analyzes the Inter-American Court’s case holdings in light of the jurisprudence of the European Court of Human Rights and the U.N.Human Rights Committee.

Adrienne Stone & George Williams, Freedom of Speech and Defamation: Developments in the Common Law World, 26(2) Monash University Law Review (2000) [Open Access]

This comment traces the relationship between freedom of speech and the common law of defamation in India, Australia, South Africa, Canada, the United Kingdom and New Zealand. A central theme is the treatment of the iconic decision of the United States Supreme Court in New York Times v Sullivan. This comment shows that while the use of foreign precedent by judges in common law countries is widespread, the use of such precedent is, in the main, not uncritical.

Northern Ireland, Report of the Legal Advisory Group on Defamation, March 2003 [Open Access]

This report was drafted by the Ireland Government and provided a series of recommendations to overhaul the outdated Defamation Act, 1961 and to bring the law in line with that of other States.

Read Article IX’s critique of the Report here – Submission on the Report of the Legal Advisory Group on Defamation

United Kingdom Ministry of Justice, Draft Defamation Bill: Consultation Paper, (2011) [Open Access]

The draft Defamation Bill and accompanying consultation paper contain provisions reforming the law to strike the right balance between protection of freedom of speech and protection of reputation in the United Kingdom.

See Also: Report of the Joint Committee on the Draft Defamation Bill

Indian Material

S.P Sathe, Defamation and Public Advocacy, 38(22) Economic and Political Weekly 2109 (2003) [Open Access]

This article discusses the judgment of a City Civil Court in Mumbai that protected the right of criticism of illegal acts of the State. It also discusses the way in which criticism of public functionaries has been dealt with by the Indian legal system.

AnishDayal, Inside Law: How Defamation works in India, Wall Street Journal, 15 November 2012[Open Access]

This blog post summarizes the current position on defamation law in India.

Madhavi Divan, ‘How to repair a reputation’, Indian Express, 5 October 2012[Open Access]

This news article discusses the problems associated with the implementation of defamation law in India.

KamayaniBalaMahabal, A cheeky video game by Greenpeace, but Corporate Giant Tata is not amused, The Free Speech Hub, 5 August 2010[Open Access]

This blog post discusses the problem of SLAPP suits in defamation cases in India; and provides a number of well-publicized cases in which a SLAPP suit has been effectively used to silence free speech.

Liat Clark, ISPs must block defamatory sites in India, including Government’s own pages, Wired, 9 February 2013[Open Access]

This blog post discusses the Court order granted to IIPM regarding allegedly defamatory statements made about the University in news articles and blogs; and the subsequent move of the Government to censor websites in response to the Court order.

SukumarMuralidharan, Quashing Dissent: Where National Security and Commercial Media converge, 48(9) Economic and Political Weekly (2013)[Open Access]

This article discusses the constitutionality of the blocking orders issued by the Department of Telecommunications to Internet Service Providers, and specifically focuses on those issued as a result of the IIPM defamation lawsuit.

Lawrence Liang, Bloggers and Defamation, Kafila.org  (25 February 2009)[Open Access]

This post discusses the criminal defamation suit filed against a 19 year old boy in India for certain comments posted on Facebook. The author argues that bloggers cannot be equated to large newspapers and media houses. He suggests that instead of seeing this as an issue of the privilege of bloggers v. newspapers, it might make sense to locate the history of criminal defamation within the larger context of free speech as it affects different kinds of practitioners.

Ajoy Roy, SLAPP Suits in the Indian Context, InHouseLawyer.co.uk, 2011[Open Access]

This Blog post discusses two Indian High Court judgments that have dealt with the problem of SLAPP suits in India.

UjjwalaUppuluri, On the Unfortunate Rise of the Indian SLAPP Suit, Free Speech Initiative, 24 May 2013[Open Access]

This blog post discusses phenomenon of SLAPP suits and analyzes the situations in which defamation SLAPPs have been used in India to silence public opinion.

ChaitanyaRamachnadran, Intermediary Liability in Defamation cases, SpicyIP, 13 September 2013[Open Access]

This blog post discussed Section 79 of the Information Technology Act, and the Intermediary Rules notified under the Act in light of the three recent cases of defamation filed against ISPs in India.

A.G Noorani, Free Speech and Religion, 44(23) Economic and Political Weekly 17 (2009)[Paid Database]

This article discusses the resolution of defamation of religions that was adopted by the United Nations, and analyses rulings of the English courts and the European Court of Human Rights on defamation of religion.

A.G Noorani, A right to insult, 29(12) The Frontline (2012)[Open Access]

This article discusses the debate of free speech and the defamation of religions. It analyzes the recent cases of censorship of material that makes controversial religious statements, especially against Islam. The article also discusses ruling of US Courts on group libel law.

A.G Noorani, Local Bodies cannot sue for libel, 27(13) Economic and Political Weekly (1992)[Paid Database]

This article discusses the right of local bodies to sue for libel, and its effect on the provision in the Indian Criminal Procedure Code that allows for prosecuting persons who have defamed

‘public servants’ in respect of their conduct in that capacity.

A.G Noorani, The Law of Libel in Pakistan, 37(19) Economic and Political Weekly (2002)[Paid Database]

This article discusses the judgments of the Indian and Pakistani Supreme Courts on the issue of proving malice in defamation lawsuits instituted by a public figure plaintiff.

Rajeev Dhavan, Whistles, Stings and Slaps, The Hindu, December 12, 2003[Open Access]

In this article, Rajeev Dhavan argues that defamation lawsuits have becoming an increasingly popular tool to attack whistleblowers and suppress accounts of corruption.

Lord Macaulay, Macaulay’s Notes on the Indian Penal Code

Lord Macaulay’s notes on the offences under the IPC provide an invaluable guide to its interpretation. In Note R, he has provided a note exclusively on the chapter of defamation.

Nikhil Moro, Web Freedom and Criminal Libel in India, The Hindu Centre for Politics & Public Policy, 2013[Open Access]

This report provides an analysis of the various criminal libel laws in India, particularly those which are being used to curb free speech on the internet, such as the IT Act, the IPC and the Prevention of Insults to National Honour Act. It uses a dialectical approach to discuss the Indian media policy in light of constitutional “reasonable restrictions” as interpreted by the Supreme Court of India.

NALSAR, Defamation Module, Media and Tort Law[Open Access]

This module on Defamation law provides an introduction to the law of defamation in India, and also provides a summary of the pertinent case law on the subject.

CRIMINALIZATION OF DEFAMATION

Emma Watson & Alex Johnson, Decriminalising Defamation, International Federation of Journalists (2005) [Open Access]

This Report by the International Federation of Journalists argues against the criminalization of defamation as it causes a chilling effect on free speech, especially of the press. It offers a summary of recent international defamation cases and aims to provide the resources necessary to campaign for the decriminalization of defamation.

Council of Europe, Towards Decriminalization of Defamation, Parliamentary Assembly Report, Committee on Legal Affairs and Human Rights (2007)

The Parliamentary Report of the Council of Europe argues that criminal sanctions for defamation may have a “chilling effect” and restrict free debate. The Report concludes that prison sentences must be excluded in the case of defamation in order to ensure that the laws of Member States are in line with the evolving jurisprudence of the European Court of Human Rights.

Note, Constitutionality of the Law of Criminal Libel, 52(4) Columbia Law Review 521 (1952) [Paid Database]

This paper argues that the concept of criminal prosecution for the publication of defamatory statements is inimical to the principle of freedom of the press embodied in the Federal Constitution. It contends that this becomes readily apparent as the actual basis of the law of criminal libel is protection of reputation rather than prevention of breaches of the peace.

Organization for Security and Co-operation in Europe, Ending the Chilling Effect: Working to Repeal Criminal Insult and Libel Laws , Representative on Freedom of the Media (2004) [Open Access]

This OSCE Report gives an overview of the working of criminal libel laws in the OSCE region, and then makes a case for de-criminalisation of defamation, and the de-harshening of libel laws. It goes on to make a number of recommendations to the Government and the Judiciary to ensure that the aim of ending the chilling effect on free speech can be achieved.

Mei Ning Yang, Criminalization of Defamation in the New Media environment – The Case of the People’s Republic of China, 14 International Journal of Communication Law and Policy 2 (2011)[Open Access]

This article summarizes the International position on criminal defamation, and the calls for its abolition. However, it also points out that criminal defamation still exist in more than 100 countries around the world, and have apparently been given a new lease on life in some jurisdictions, including several states in the United States, in an effort to tackle malicious online attacks on reputation. This article reports the results of an exhaustive survey of criminal defamation cases over the years in the People’s Republic of China with an emphasis on examining whether criminal defamation has a special role to play in policing online speech.

Susan W. Brenner, Should Online Defamation be criminalized?, 76 Mississippi Law Journal 705 (2006-07) [Open Access]

This paper argues that though defamation has not been a criminal offence in the United States since the drafting of the Model Penal Code, this position needs to be revaluated with regard to internet defamation. It argues that with the increasing use of cyberspace, greater harm is caused due to online defamation, which should thus be criminalized.

DEFAMATION AND THE PRESS

Russell Weaver et. Al., Defamation Law and Free Speech: Reynolds v Times Newspapers and the English Media, 37(5) Vanderbilt Journal of Transnational Law 1255 (2004) [Paid Database]

This Article analyses the standard laid down by the English Courts in Reynolds, with particular emphasis on how that decision has affected media practices and reporting. This is done through empirical evidence rather than doctrinal analysis. It concludes that, although Reynolds has had some impact on British defamation law as well as on the practices of the British media, the impact has not been as dramatic as the Sullivan decision’s impact on U.S. press and media practices.

Willard H. Pedrick, Freedom of the Press and the Law of Libel: The Modern Revised Translation, 49 Cornell Law Quarterly 581 (1963-64) [Paid Database]

This article explores the mechanism by which the task of balancing the societal interest in the free flow of information against the interest in securing responsibility in dissemination of information and in protecting individual reputation from unwarranted injury can be carried out. It argues that the present remedy of libel action is unsuited to promoting free press, and advocates for the introduction of a retraction and a Right to Reply legislation to replace the remedy of libel.

Ian Cram, Political Expression, Qualified Privilege and Investigative Journalism – An Analysis of Developments in English Defamation Law post Reynolds v Times Newspapers, 11 Canterbury Law Review 143 (2005) [Paid Database]

The article argues that theReynoldscasehas not ushered in a more protective era for investigative journalism, and that it may even be plausibly claimed that the methodology of Reynolds is responsible for causing a chill to free speech and expression. It thus argues for reform of English Defamation law as it relates to the press.

Patrick M. Garry, Anonymous Sources, Libel Law and the First Amendment, 78 Temple Law Review 579 (2005) [Open Access]

This article argues that given the growth of the new Internet press, as well as the transformation of the traditional press, the First Amendment doctrines governing the use of anonymous sources need reconsideration. Given this argument, this article offers a new theory of libel law as it pertains to the use of anonymous sources. It also analyzes constitutional arguments for special press privileges, particularly with respect to their relevance to the new media.

GROUP DEFAMATION

David Riesman, Democracy and Defamation: Control of Group Libel, 42(5) Columbia Law Review 727 (1942)  [Paid Database]

This article canvasses the traditional techniques for the control of defamation, and analyzes what these have accomplished and what they have to offer for the control of defamation against groups. The author concludes that the Courts remain reluctant to provide any protection in cases of group defamation for fear of unconstitutionality of their decisions.

Ellyn Tracy Marcus, Group Defamation and Individual Actions: A new look at an old rule, 71(5) California Law Review 1532 (1983) [Open Access]

The group defamation rule specifies that when a group is defamed, an individual plaintiff cannot sustain an independent defamation lawsuit except in certain cases. This article argues that rule is illogical, unfair, and no longer necessary. It proposes abolishing the rule restricting defamation suits by group members. It argues that group members should be permitted to proceed in accordance with the general standards of defamation law.

Michael J. Polelle, Racial and Ethnic Group Defamation: A Speech-Friendly Proposal, 23 Boston College Third World Law Journal 213 (2003)[Open Access]

This article submits that the law should provide a remedy for racial and ethnic group defamation. It is paradoxical for the law to only allow a remedy for individual defamation. The current civil damage lawsuit for defamation is inapplicable because courts consistently deny damages for group defamation by refusing to recognize the individual harm caused by group defamation. Likewise, criminal defamation statutes are now found in fewer than half the states and rarely used by prosecutors. This Article proposes enacting a declaratory judgment statute at the state level to remedy group racial and ethnic defamation.

Jeremy Waldron, Dignity and Defamation: The Visibility of Hate, 123 Harvard Law Review 1596 (2010) [Open Access]

This Article defends the characterization of hate speech as group defamation. It argues that hate speech impugns its victims’ standing as equal members of society.  It describes hate speech regulation as the protection of a fragile public good: the assurance offered by each member of society to all of its members that they can live free of fear, discrimination, violence, and the like. The article argues that with sufficient safeguards the loss is vanishingly small, and well worth the concomitant gains. As well, prohibitions on hate speech should only extend to issues that are “settled,” such as race, rather than issues that are currently controversial, which should further allay concerns that hate speech regulation will foreclose freedom or democratic debate.

DEFAMATION AND SLAPP SUITS

D. Mark Jackson, The Corporate Defamation Plaintiff in the Era of SLAPPs: Revisiting New York Times v Sullivan, 9(2) William & Mary Bill of Rights Journal 491 (2001)

Following a survey of the history of defamation law and the protection of free speech, this Note argues that corporations should be treated as per se public figures in defamation suits. This derives from the uniquely public nature of a corporation and an assumption of the risk of defamatory falsehoods that arises from the act of incorporation. Treating corporations in this manner would place a heavier burden on corporations by requiring a showing of actual malice in their defamation claims. This Note concludes that such a requirement would provide a better balance between corporations’ defamation concerns and their opponents ‘free speech rights.

Joshua R. Furman, Cybersmear or Cyber-SLAPP: Analyzing Defamation Suits Against Online John Does as Strategic Lawsuits Against Public Participation, 25 SEATTLE U. L. REV. 213 (2001) [Open Access]

This Comment surveys the law of cybersmear, illustrating the paradigmatic issues and legal theories employed. Then, it discusses the free speech issues and theoretical bases argued in court and legal journals, paying special attention to the shortcomings in current protection of defendant anonymity. Next, it examines the value of online anonymity and the protections that the Strategic Lawsuit Against Public Participation (SLAPP) theory offers. Finally, given the breakdown in the public and private space dichotomy, this Comment argues for a new understanding of the SLAPP constitutional protections in cyberspace

John P. Trende, Defamation, Anti-SLAPP Legislation and the Blogosphere: New Solutions for an Old Problem, 44 Duquesne Law Review 608 (2006) [Paid Database]

This article discusses the threat faced by bloggers from defamation law suits. It argues that little has been done to protect a small-scale blogger who faces the high costs of litigation, even if the published content is true or if the comments were made by others on the blogger’s blog or message board. This Article suggests a federal statute ought to be adopted to protect speakers from such SLAPP suits.  Such anti-SLAPP laws could serve as a powerful deterrent against groundless suits.

DEFAMATION AND THE INTERNET

Robin Foster, News plurality in a digital world, Reuters Institute for the study of journalism, 25-52, (2012)[Open Access]

This report analyses the potential impact of digital intermediaries (such as news aggregators, search engines, social media and digital stores) on plurality in the news media. It finds that although digital intermediaries play an important role in enhancing plurality in many ways, concerns remain over their gatekeeper position over the news as well as the exercise of editorial judgment over different sources. It further argues that digital intermediaries are likely to have a significant impact on the future of news economics and may even develop considerable political influence. The report, however, concludes that hasty attempts to regulate may prove to be ineffective.

United Kingdom Law Commission, Defamation and the Internet: A Preliminary Investigation, Law Commission Scoping Study No. 2, December 2012 [Open Access]

This report identified four areas of concern with respect to the law on defamation and the internet – the liability of internet service providers (ISPs) for other people’s material, the application of the limitation period to online archives, the exposure of internet publishers to liability in other jurisdictions and the risk of prosecution for contempt of court. It found that ISPs were often pressured to remove material without considering whether it was in public interest, and therefore recommended that the defences available to ISPs from defamation claims be extended. The report also focused on the jurisdictional difficulties in deciding where an internet defamation claim could life, but concluded that any solution would require an international treaty.

AK Sanders, Defining Defamation: Community in the Age of the Internet, 15(3) Journal of Communication Law and Policy (2010) [Open Access]

The paper uses legal research methodology to examine and evaluate federal and state defamation jurisprudence. In doing so, it determines what factors the courts have used to define community in both traditional print and broadcast defamation cases as well as online defamation cases. It then evaluates those factors and concludes with suggestions for uniformly defining community in online defamation cases

Defamation and Anonymous Speech

Lyrissa Barnett Lidsky, Silencing John Doe: Defamation and Discourse in Cyberspace, 49(4) Duke Law Journal (2000)

This article deals with defamation actions brought against John Doe defendants for anonymous speech on the Internet. These actions, sometimes denoted as cyberslapps, threaten to chill the vitality of Internet discourse. This Article articulates a theory that justifies protecting John Doe from the silencing effect of unfounded defamation actions and suggests steps that courts should take to adapt the First Amendment privilege for opinion to the unique context of cyberspace.

Ryan M. Martin, Freezing the Net: Rejecting a One-Size-Fits-All Standard for Unmasking Anonymous Internet Speakers in Defamation Lawsuits, 75 University of Cincinnati Law Review 1217 (2007) [Paid Database]

This Article argues that, in defamation actions involving anonymous political speech, plaintiffs should not be able to learn the identity of John Doe defendants unless plaintiffs can meet the summary judgment standard and show that the defamatory language at issue was of such an egregious nature that the plaintiff is likely to be able to show actual malice at trial.

Eric P. Lewis, Unmasking “Anon12345”: Applying an Appropriate  Standard when Private Citizens seek the Identity of Anonymous Internet Defamation Defendants, 3 University of Illinois Law Review 957 (2009) [Open Access]

The article analyses the standards used by the Courts to determine when it is appropriate to unmask an anonymous Internet defamation defendant. It examines the manner in which each approach to unmasking anonymous Internet defamation defendants strikes a balance between the First Amendment’s protection of anonymous speech and laws that prohibit defamation. The article then recommends that the standards for unmasking anonymous Internet defendants should be tiered according to whether the plaintiff is a public figure, a corporate entity, or a private individual.

Jurisdictional Issues

Eric J. McCarthy, Networking in Cyberspace: Electronic Defamation and the potential for International Forum Shopping, 16(3) University of Pennsylvania Journal of International Business Law 528 (1995) [Open Access

This Comment explores the possibilities for international forum shopping, particularly for suits filed in England. It discussed how English courts classify a media defendant and whether a defamed plaintiff can collect a favourable judgment overseas. In conclusion, this Comment suggests that the potential for forum shopping will negatively impact cyberspace travel, ultimately chilling the freedom of speech and individual expression.

Matthew Collins, Defamation and the Internet after Dow Jones & Co. v Gutnick, 8 Media & Arts Law Review 165 (2003) [Open Access]

This Article analyses the decision of an Australian High Court in Dow Jones and argues that though this decision does have the potential to chill freedom of speech on the Internet, there are significant substantive and practical reasons why it will be unlikely to have the dire implications some have predicted.

Barry J. Waldman, A unified approach to Cyber-Libel: Defamation on the Internet, A suggested approach, 6 Richmond Journal of Law and Technology 9 (1999) [Open Access]

The author analyses the major issues regarding cyber libel, that is, jurisdiction and conflict of laws. He suggests that a unified rational approach be developed to handle the variety of complex issues that arise in this unique area of law.

Doug Rendleman, Collecting a Libel Tourist’s Defamation Judgment? 67 Washington & Lee Law Journal 467 (2010) [Open Access]

This article discusses how the American Courts deal with libel judgments that have been obtained from foreign jurisdictions. Invoking the First Amendment under a public-policy exception to comity, U.S. courts have rejected foreign-nation defamation judgments. Against this tide, the following Article maintains that courts in the United States ought to take a more cautious and nuanced approach and recognize at least some overseas defamation judgments.

Thomas Sanchez, London, Libel Capital no longer?: The Draft Defamation Act 2011 and Libel Tourism, 9(3) University of New Hampshire Law Review 470 [Open Access]

This article analyzes the efficacy of the Draft Defamation Act and its impact on the enforcement of English defamation judgments in U.S. courts. Specifically, it proposes that the Draft Act’s procedural clauses will effectively reduce the prevalence of libel tourism in England.

Liability of Intermediaries

Scott Sterling, International Law of Mystery: Holding Internet Service Providers liable for Defamation and the need for a comprehensive International solution, 21 Loyola of Los Angeles Entertainment Law Review 327 (2000-01)[Open Access]

This Comment discusses the weaknesses of the current country-by country approach by which ISPs are held legally responsible for publishing libel. It analyzes current Internet libel law at the international level and argues the necessity for a revision regarding its treatment.

Susan Freiwald, Comparative Institutional Analysis in Cyberspace: The case for Intermediary Liability for Defamation, 14(2) Harvard Journal of Law and Technology 569 (2001)[Open Access]

In this article, the author seeks to determine which institution – Congress, courts or the market – must determine the scope of intermediary liability. He does so by exploring various methodologies such as the public choice theory, transaction cost economics and legal processes. The author urges courts to take a greater look at comparative institutional analysis to determine the role of law in cyberspace

H. Brian Holland, In defense of Online Intermediary Immunity: Facilitating Communities of Modified Exceptionalism, 56(101) Kansas Law Review (2007)

This article defends the broad immunity granted to ISPs under Section 230 of the Communications Decency Act. It argues that the immunity provisions of Section 230 play a significant role in broader questions of Internet governance. Specifically, Section 230 immunity provides a means of working within the sovereign legal system to effectuate many of the goals, ideals and realities of the Internet exceptionalism, cyberlibertarian movements.  It concludes that efforts to reform Section 230 are unnecessary and unwise.

Matthew G. Jeweler,  The Communications Decency Act of 1996: Why § 230 is Outdated and Publisher Liability for Defamation Should be Reinstated Against Internet Service Providers, 8 University of Pittsburgh Journal of Technology Law & Policy 3 (2007) [Open Access]

Section 230 of the CDA has been interpreted broadly, giving seemingly complete immunity to internet service providers (“ISPs”) and website operators in third-party claims for defamation committed on the Internet. This article argues that today, with the Internet being the dominant medium that it is, the CDA is out-dated and unfair, and should be amended or repealed in favour of the common law framework for publisher liability in defamation.

Seth Kreimer, Censorship by Proxy: The First Amendment, Internet Intermediaries and the problem of the weakest link, 155(11) University of Pennsylvania Law Review (2006) [Open Access]

The architecture of the internet makes it difficult to ascribe liability on speakers or listeners directly and hence liability is fixed on private intermediaries who are clink in the armour. The author argues that this move poses a threat to the freedom of speech as intermediaries will have less incentive to protect free speech than individual speakers and market forces do not have the power to balancing rights.

Melissa A. Troiano, The New Journalism: Why Traditional Defamation Laws should apply to Internet Blogs, 55 American University Law Review 1447 (2005-06)[Open Access]

This article argues that the immunity under Section 230 of the Communications Decency Act should not extend to bloggers with respect to third party postings made on their blogs. It argues that private parties should only have to prove the defamation standard of negligence, whether they are on the Internet or in the traditional media. It concludes that the First Amendment goal of promoting the free exchange of ideas is helped, not hindered, by allowing private persons to keep the protection given them in Gertzwhen they venture into cyberspace.

BIBLIOGRAPHY

Daario Milo, Defamation and Freedom of Speech, OUP (2008)

Defamation and Freedom of Speech argues that fundamental rules and procedures of defamation law need to be reformed to take into account the dual importance of public interest speech, on the one hand, and the right to human dignity on the other. In particular, the presumptions that defamatory allegations are false and have caused damage, the principle of strict liability, and the availability of punitive damages, cannot survive constitutional scrutiny.

Book Review – Without Prejudice

Sir Brian Neill Et. Al., Duncan and Neill on Defamation, 3rd ed., Lexis Nexis (2009)

This concise treatise on defamation is both lucid and comprehensive. Statutory developments, including the implementation of the Defamation Act 1996, are incorporated and there is a full discussion of the various cases where aspects of the common law relating to defamation have been examined. Where the law is uncertain, the authors suggest a solution which in their view accords with principle.

Book Reviews – New Law Journal, Student Law Journal

Patrick Milmo QC & Horton Rogers, Gatley on Libel and Slander, 11th ed., Sweet and Maxwell (2008)

This is a book is a leading text on English defamation law, containing definitive coverage of the substantive law of defamation, practice and procedure, remedies and a wealth of key case law.

Book Reviews – Student Law Journal, Media and Arts Law Review, Cambridge Law Journal

Robert D. Sack, Sack on Defamation: Libel, Slander and Related Problems, 4th ed., (2010)

The new Fourth Edition of Sack of Defamation gives you the latest insight into how the law of defamation, invasion of privacy, and related torts are affected by the Internet and other electronic media, including such questions as how the institutional press versus non-traditional media defendants will be treated by the courts and to what extent new electronic media will have an effect on defamation litigation.

Book Reviews – PRNewswire, Communications and the Law

Lawrence McNamara, Reputation and Defamation, OUP (2007)

Book Reviews – Law Quarterly Review

Russell Weaver et. Al., The Right to Speak Ill: Defamation, Reputation and Free Speech, Carolina Academic Press (2006)

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.

Book Reviews – Law and Politics Book Review

Matthew Collins, The Law of Defamation and the Internet, OUP (2010)

This was the first text to analyze comprehensively the application of common law principles of defamation law to material published online. It quickly became the standard text for media and information technology practitioners and students seeking to understand this novel area of the law.

Book Reviews – The Law Shop, Student Law Journal

Indian Books

MadhaviGoradiDiwan, Facets of Media Law, Eastern Book Company (2006)

While this book covers a spectrum of subjects related to media law, such as censorship, contempt of court and parliamentary privilege, privacy, copyright, advertising, it also had an incisive chapter on defamation law.  Diwan gives a broad understanding of the law of defamation in India – its various aspects and defences.

Book Reviews – Bombay Bar Association, The Hindu

GunjanRekhi (ed.), Mehrotra’s Commentary on Law of Defamation, Damages and Malicious Prosecution, 6th ed., Delhi Law House (2010)

Justice K. Shanmukham, Mitter’s Law of Defamation and Malicious Prosecution, 11th ed., Universal Law Publishing (2008)

K.S Padhy, Battle for Freedom of Press in India, Academic Foundation (1991)

The book – Battle for Freedom of Press in India – is an academician’s record of different phases of the ill-advised move to get the Defamation Bill passed, the debates over the issue, the relevant views of politicians, journalists and lawyers and the circumstances of its withdrawal.

Justice C.K Thakker (ed.), Ratanlal&Dhirajlal’s Law of Crimes, 26th ed., Vol. II, Bharat Law House, New Delhi (2007)

Ratanlal&Dhirajlal’s commentary on the Indian Penal Code has devoted an entire chapter (Chapter XXI) to a detailed discussion on the crime of defamation as laid down in Sections 499 to 502 of the Indian Penal Code. While they exhaustively discuss case law and principles relating to the crime of defamation, the authors suggest the de-criminalization of defamation, and the deletion of this chapter from the IPC.

Dr.Hari Singh Gour, Penal Law in India, 11th ed., Vol 4, Law Publishers (2011)

Dr.Hari Singh Gour’s exhaustive commentary on the penal law in India has, in its 4th volume, a long treatise on the offence of defamation and its exceptions.

Back to top