|
|
 VINDICATED — Prof. Deborah Lipstadt of Emory University (Atlanta, GA, USA) won a libel case brought against her and Penguin Books, by David Irving, a British author. Irving had written that it was impossible for the Nazis to have killed so many people in the Holocaust. This was an historical lie, and Lipstadt subjected Irving’s work to serious factual criticism, calling out his bias and Holocaust denial. Irving sued for libel in London and lost in 2000, even though the law at the time put the burden of proof on defendants Lipstadt and Penguin. In 2006, Irving was arrested for Holocaust denial in Austria, where Nazi hate speech is illegal. Lipstadt, to her credit said: “I am not happy when censorship wins, and I don’t believe in winning battles via censorship… The way of fighting Holocaust deniers is with history and with truth.” Emory University maintains a web site on the trial and on Holocaust denial. (Photo courtesy Emory University).
|
Aside from outright prior restraint censorship by the government, lawsuits for defamation (libel) are among of the surest ways to chill media criticism 0f public figures and government officials.
Here’s what to look for when comparing defamation laws:
- Tolerance for public debate? Generally, is criticism of the government, political parties or public officials tolerated or encouraged?
- Civil or criminal? Which kind of approach is taken to defamation trials? Criminal libel is considered to be backward and punitive.
- Public or private individuals? Does the law distinguish between public figures (who should expect some criticism and can deflect it) and private individuals (who are less able to defend their reputations)?
- Is truth a defense? Truth has been a defense in the US and UK systems since the 1730s, but some seditious libel laws would still hold that a truthful criticism of government is more credible and only makes the damage to reputation worse.
- How is fault assessed? In the US, under the Sullivan standard, public figures must prove that a publisher released defamatory information knowing it was false or with reckless disregard for the truth. This is a relatively difficult standard to meet and is intended to protect freedom of speech and press.
- Burden of proof is on which side — the plaintiff or respondent / defendant? (News media is usually the respondent / defendant). In the US and many (but not all) European countries, the burden of proof is on the plaintiff.
- Group libel? Can large groups, institutions or political parties be libeled, and if so, how? European hate speech laws presume damage to a group’s reputation as a precursor to violent action. In countries without a free press, defamatory statements about political parties or other institutions are seen as undermining their group’s reputations.
- Is harm assumed or must it be proven?
- Are there anti-SLAPP or “whistleblower” or “shield” laws to protect critics from retaliatory lawsuits by big companies and institutions suing their critics? (SLAPP is Strategic Lawsuit Against Public Participation).
Examples of differences in defamation law
A list of defamation laws by country is found on Wikipedia. The Kelly Warner group also has a country-by-country, law by law index to defamation. Another is found at the University of Houston:
Among the highlights and recent changes:
Canada — Burden of proof is still on the defendant
“Want to silence the truth? Sue for defamation,” By Hillary Young. Jan. 17, 2016. Toronto Starr. The burden of proof should shift to the plaintiff, Young argues.
Hill v Church of Scientology, 1995, was a libel case against the Church of Scientology in which the Supreme Court of Canada said that Canadian courts would not follow the US actual malice standard from New York Times Co. v. Sullivan, 376 U.S. 254 (1964).
Japan — Criminal and civil; truth is not always a defense.
Libel laws in Japan are meant to protect honor and reputation, according to a Feb. 2016 article by Kaitlin Stainbrook, noting that a Google search auto-complete had to be changed by court order after a criminal record kept popping up with a man’s name. It didn’t matter whether he had a criminal past.
“In Japanese libel and slander cases, the truth won’t necessarily help you. Instead, it all comes down to reputation. The Japanese word for defamation is meiyokison 名誉毀損, which, when broken down, literally means “damaged honor”. Even if a published statement is 100% true, it can still be considered defamatory if it irrevocably hurts the subject’s reputation and oftentimes the question of truth doesn’t really enter the equation.”
Mexico — Reformed its 1917 statute on criminal libel in 2007.
The Committee to Protect Journalists said this effectively eliminates criminal defamation, libel, and slander at the federal level, making Mexico the second country in Latin America to repeal criminal libel laws. However, libel law is secondary in many nations, since outright government censorship of journalists takes place under sedition laws or in extra-judicial killings, kidnappings and disappearances.
Nigeria — Sharia law in the north; Improvements in press freedom in the south
According to Freedom House: In recent years, federal courts have attempted to expand legal protections for journalists and provide fair rulings on cases involving the media… (Yet) criminal and civil laws applicable to the entire country also punish various press and speech offenses, including sedition, criminal defamation, and publication of false news. Several journalists have been charged with criminal defamation in recent years, though in most cases the charges were eventually withdrawn.
One recent case involved Leadership newspaper editor Tony Amokeodo and correspondent Chibuzor Ukuibe, who were charged in 2013 with 11 criminal counts, including forgery, conspiracy to commit a felony, and incitement of public disaffection against the president. If convicted, the journalists could have been sentenced to life in prison, but they were acquitted in 2015. This contrasts with the way journalist Ken Saro-Wiwa was executed by the Nigerian government in 1995.
Singapore — Libel law is often used to silence critics.
For example, an article about nepotism in Singapore’s government, published in the US by Bloomberg, led to a libel suit by Singapore’s Senior Minister Lee Kuan Yew in Singapore courts. The Bloomberg service settled the case for over $550,000 in a widely criticized “swift capitulation.”
United Kingdom — Press standards are more explicit in the UK, but they are increasingly difficult to harmonize on an international level
The story of semi-voluntary media regulation in the UK is the story of one commission after another. From the founding of the Press Council in 1953, to its reorganization into the Press Complaints Commission in 1990, to the establishment of the Independent Press Standards Organization in 2014, each period of media reform followed a major upheaval or scandal in the media. The most recent change followed the News International phone hacking scandal around 2011.
The current IPSO Editor’s Code is meant to encourage accuracy and ethics while discouraging intrusion into individual privacy. It is also meant to help individuals deal with the often rowdy “Red Top” press and correcting misinformation without bringing on expensive libel lawsuits.
The IPSO’s regulatory reach was being challenged in the summer of 2016 by the Daily Mail in a defamation action involving the Church of Scientology and actor Tom Cruise. The Mail says the article describing Cruise’s relationship with the church was generated by its US division, and therefore not subject to IPSO regulation. One UK barrister quoted by the Hollywood Reporter said that if U.K. publishers have the option of operating an unregulated website section from outside the country, Fleet Street could soon return to the environment that led to the News International hacking scandal of 2011.
——-
“How to successfully defend yourself in Her Majesty’s libel courts, ” by Paul Radu, Global Investigative Journalism Network, Feb. 26, 2020: “In the US … courts value and protect freedom of speech and demand the plaintiff prove that libel took place and it caused harm. In the UK, the system is designed to protect reputations, and journalists bear the burden of proving that what they wrote is true or “reasonably in the public interest.” That subtle difference means most libel suits fail in America, while many are successful in the UK, making UK courts the jurisdiction of choice for wealthy people shopping for verdicts in their favor or simply trying to drain a journalist of time and money defending themselves against possibly baseless claims.
“The Defamation Act two years on,” by Herbert Smith Freehills. A survey found that libel cases were down by 27% in UK since 2014, when the libel reform took place. The reforms were needed because of the selective use of libel and defamation law to punish political speech, as noted in the Matthew Pollack’s 2008 RSF article Libel plaintiffs resort to British court system).
“Since 2002, Khalid Salim a Bin Mahfouz, a Saudi Arabian businessman and banker, has sued or threatened to sue for libel at least 36 times in British courts. Every media outlet or publisher he sued or threatened to sue has apologized, retracted and paid fines.”
One response was a New York state law entitled the Libel Terrorism Protection Act which gives American defendants protection from libel suits brought from other nations with fewer free speech protections.
In 2002, the Oxford Program in Comparative Media Law and Policy studied the difference in the costs of a defamation lawsuit in European nations.