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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

* * Professor of Law & Distinguished University Scholar, University of Louisville, Louis D. Brandeis School of Law.

* ** Dean and Asa Griggs Candler Professor of Law, Emory University School of Law.

1 ? Paul Schiff Berman, Global Legal Pluralism, 80 S. Calif. L. Rev. 1155 (2007) (pointing to the reality of legal pluralism and suggesting reconciliation in hybrid spaces through legal tolerance.)

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

2 ? [Dueling was to long subsist in a status society. This is a reason why in the Southern states of the United States, where social status was critical, dueling was an accepted social practice. Recall the famous duel between Alexander Hamilton and Aaron Burr. CITE RECENT STUDIES OF DUELLING.]

1 1 See Ogden v Turner, 87 Eng. Rep. 862 (K.B. 1703); Davies v Gardiner, 79 Eng. Rep. 1155 (K.B. 1593).

2 2 The outstanding historical treatment is R. Helmholz, Introduction, Select Cases on Defamation to 1600 (Selden Society, 1985).

3

PAUL BARRY, THE RISE AND FALL OF KERRY PACKER (2002) was so vetted.

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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 4 Take, for example, Mr. Gutnick, the central player in the foundational case laying bare

the implications of defamation in the internet age. Mr. Gutnick is a man of considerable wealth and is as well known and familiar in New York City and Jerusalem as he is in Melbourne. See William T. Mayton, Birthright Citizenship and the Civic Minimum, Georgetown Immigration Law Journal, Vol 22, Winter 2008, No. 2.

5 Broyde’s op. ed.; Rachel Donadio, Libel Without Borders, N.Y.T. Book Review Oct. 7, 2007 p. 43. These writers were concerned about the impact of the litigation brought by Sheik Khalid bin Mahfouz. The byline in the latter essay is “Is English Libel Law Chilling Writers on This Side of the Atlantic Too?” Rosen, Let’s Go Libel, New Yorker, 2007. Blandly noted by the Economist Magazine “Sheikh it all about: How far can a Saudi Sheikh use English law against an American Author, The Economist, Nov 10, 2007. Ms. Ehrenfeld is reported to have said: “English law does not apply here since 1776, when we won our independence.”

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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.

6 See European Convention on Human Rights. Refer to Ronald J. Krotoszynski, Jr., The First Amendment in Cross-Cultural Perspective: A Comparative Legal Analysis of the Freedom of Speech; and Eric Barendt, Freedom of Speech, Oxford Univ Press (2005).

7 See Gertz v. Welch, 418 U.S. 323 (1974); see also RUSSELL L. WEAVER, ANDREW KENYON, CLIVE C.P. WALKER & DAVID F. PARTLETT, THE RIGHT TO SPEAK ILL: DEFAMATION, REPUTATION & FREE SPEECH 4-15 (2006) (hereafter The Right to Speak Ill). On the definition of reputation, see Lawrence McNamara, Reputation and Defamation (2008), arguing that reputation is a community’s moral judgment. See also Daniel Solove, The Futre of Reputation: Gossip, Rumor, and Privacy on the Internet (2007) (pointing to the changing conception of reputation in the age of the internet), and Jonathan Zittrain, The Future of the Internet (2008), pp 216-221 describing markets for reputation).

8 Id. at 17-34.

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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.10 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.”11 In addition, the Court held that

defamation plaintiffs must prove their cases with “convincing clarity,”12 and that a reviewing

court must independently examine the entire record to assure that “the judgment does not

9 376 U.S. 264 (1964).

3 This demonstrates a weakness of broad law reform by courts. The posture of the case dictated the cast of the law going forward. We suggest that focus on the “public interest” would have led to a more rational body of law.

010 See Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986).

11 Id.

212 See Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 514 (1984) (suggesting that prior cases have held that “a First Amendment precondition to liability in a defamation case [is] that an appellate court ‘must exercise independent judgment and determine whether the record establishes actual malice with convincing clarity.’” (quoting Miller v. Fenton, 474 U.S. , 104, 110 (1985)).

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constitute a forbidden intrusion on the field of free expression.”13 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.14

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.,15 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....”16 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.17 the Court flatly rejected the focus on public interest:

313 Id.

414 See Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967); Associated Press v. Walker, 388 U.S. 130 (1967).

515 403 U.S. 29 (1971).

616 Id., at 45.

717 418 U.S. 323 (1974).

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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....18

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.,19 the Court

distinguished between private individuals involved in matters of purely private concern, and

818 Id., at 345; see also Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 789 (1986); Time, Inc. v. Firestone, 424 U.S. 448, 454 (1976);

919 472 U.S. 749 (1985).

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private individuals involved in matters of more public concern.20 When a case involved a matter

of purely private concern, a lower proof standard could be imposed.21

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.”22 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,23 Australia’s High

Court extended common law qualified privilege to cover matters related to the conduct of

governmental affairs.24 However, the Court maintained the burden of proof on the defendant,

020 The case involved a credit reporting agency that inaccurately reported that plaintiff’s business was in bankruptcy. In justifying its decision, the Court stated that “[it] is speech on ‘matters of public concern’ that is ‘at the heart of the First Amendment’s protection.’ [In] contrast, speech on matters of purely private concern is of less First Amendment concern. [T]he role of the Constitution in regulating state libel law is far more limited when the concerns that activated New York Times and Gertz are absent. In such a case, ‘[t]here is no threat to the free and robust debate of public issues; there is no potential interference with a meaningful dialogue of ideas concerning self-government; and there is no threat of liability causing a reaction of self-censorship by the press . . . .’” Id., at 760.

121 See id. (“In light of the reduced constitutional value of speech involving no matters of public concern, we hold that the state interest adequately supports awards of presumed and punitive damages — even absent a showing of ‘actual malice.’”).

22 NORMAN L. ROSENBERG, PROTECTING THE BEST MEN: AN INTERPRETIVE HISTORY OF THE LAW OF LIBEL (1986), which traces the colonial roots of this notion. He notes that President Richard Nixon in 1974 was concerned that libel laws following Sullivan would discourage "good people" from running for "public office."

323 (1997) 189 C.L.R. 520, 521 (Austl.).

424 For a fuller examination of this decision, and its effect on Australian law, see Russell L. Weaver & David F. Partlett, Defamation, the Media and Free Speech: Australia’s Experiment with Expanded Qualified Privilege, 36 G.W.I.L. REV. 377 (2004) (hereafter “Weaver & Partlett”).

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and required adherence to a “reasonableness” standard.25 New Zealand followed suit in Lange v.

Atkinson.26 In that case, New Zealand’s Court of Appeal held that qualified privilege included

speech about politicians and candidates.27

Britain joined the qualified privilege approach in 1999. In that year, the House of Lords

decided Reynolds v. Times Newspapers28 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.”29 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.30 Their Lordships

emphasized the “liberalizing intention” of Reynolds, in finding that deference ought to be given

to “professional judgment of an editor or journalist.”31 The speeches of the Law Lords stress the

525 See The Right to Speak Ill, supra, at 82-87.

626 [1997] 2 N.Z.L.R. 22, 27 (H.C.).

727 Id. (“generally-published statements made about the actions and qualities of those currently or formerly elected to Parliament and those with immediate aspirations to be members, so far as those actions and qualities directly affect or affected their capacity (including their personal ability and willingness) to meet their public responsibilities.”).

828 [2001] 2. A.C. 127 (H.L.). See PATRICK MILMO AND W V H ROGERS (EDS), GATLEY ON LIBEL AND SLANDER, ch. 14 (10th ed., London: Sweet & Maxwell 2004)

929 The Right to Speak Ill, supra, at 103.

030 [2006] UKHL44]

131

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flexibility that is to be accorded to responsible journalism, and that was exemplified by the Wall

Street Journal.32 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.33 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.”34 In the post-Sullivan era, there are virtually no defamation suits by

Per Lord Bingham, per Lord Hoffman: “Reynolds has had little impact upon the way the law is applied at first instance. It is therefore necessary to restate the principles.”

232 The House of Lords refers with approval to Bonnick v Morris [2003] HS300 (Privy Council)]

33 Id., at 183-200.

434 Id. at 184. Note David Logan’s analysis of plaintiff’s lack of success in actions against the media. David A. Logan, Libel Law in the Trenches: Reflections on Current Data on Libel Litigation, 87 VA. L. REV. 503, 539 (2001). But see Rodney A. Smolla, Let the Author Beware: The Rejuvenation of the American Law of Libel, 132 U. Pa. L. Rev. 1 (1983) (discussing the uptick in libel suits against the media).

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public officials against the media, and defamation suits by public figures are relatively rare.35 In

addition, Sullivan has generally put a significant damper on defamation litigation by other

plaintiffs.36

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.37 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.38 The media continues to make publication decisions

using the same approach, and under the same criteria, as before Lange was rendered.39

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.40

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

535 Id. at 183-200.

636 Id.

737 See Russell L. Weaver & Geoffrey J.G. Bennett, Is the New York Times Actual Malice Standard Really Necessary? A Comparative Perspective, 53 LA. L. REV. 1153 (1993).

838 See The Right to Speak Ill, supra, at 204-14.

939 Id.

040 Id. at .215-242

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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.41

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,42 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

141 See Raymond E. Brown, The Law of Defamation in Canada 1096 (2d ed. 1999).

)

242 [2002] 210 C.L.R. 575 (Austl.),

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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.”43

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.

Gutnick is not alone. Take the House of Lords decision in Berezovksy v Michaels,4

which accepted that English courts had jurisdiction and applied English law for a Barron’s

article on the Russian politician and businessman Boris Berezovsky. Of the Barron’s circulation,

98.9% was sold in the U.S.A., Canada, or to overseas U.S. forces. The English circulation was a

mere 2,000 copes. The English Law Commission in Defamation and the Internet: A

Preliminary Investigation (2002) noted the issues and saw that a solution would require “a

343 The case that he referred to was Duke of Brunswick v. Hamer (1849) 14 Q.B. 185, 117 E.R. 75).

4 _______ [2000] 2 All E.R. 986.

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greater harmonization of the substantive law of defamation.” Another salvo in the Internet

defamation war was fired by the English Court of Appeal in Lewis v. King,44 a case involving an

Internet defamation dispute regarding several postings made to boxing websites concerning the

actions of Don King. In particular, one posting accused Mr. King of anti-Semitic comments,

which Mr. King claimed defamed his reputation amongst the Jewish community in England.

The alleged defamatory statements central to the English case came (1) from a piece written in

the United States by the New York attorney representing the defendants and posted on the

Internet, and (2) from an interview given by that same attorney to a website based in California

where the attorney had posted the complaint in the dispute days before. The Court of Appeal

ruled that Don King could sue in England for his harm suffered there. Even though all of the

factual events leading up to the English action occurred in the United States, and even though

the applicable United States’ law would likely have doomed a charge of action under the public

figure doctrine in Sullivan, the English Court of Appeal was untroubled by the lower court’s

refusal to dismiss King’s case. The English Court, refusing to accept the “single publication

rule,” found that the case could proceed on the basis of King’s reputational harm in England.

Lord Hoffman in Berezovsky was untroubled by the action in English courts. His Lordship

recognized that the damages award “would not even be enforceable against the defendants in the

United States” and

The common sense of the matter is that he [Berezovsky] wants the verdict of an English court that he has been acquitted of the allegations in the article, for use wherever in the world his business may take him. He does not want to sue in the United States because he considers that New York Times v. Sullivan, 376 U.S. 254 (1964) makes it too likely that he will lose. He does not want to sue in Russia for the unusual reason that other people might think it was too likely that he would win. He says that success in the Russian courts would not be adequate to vindicate his reputation because it might be attributed to his corrupt influence over the Russian judiciary . . . The plaintiffs are forum shoppers in the most literal sense. They have weighed up the advantages to them of the various jurisdictions that might be available and decided that England is the best place in which to vindicate their international

44 [2004] E.W.C.A. Civ. 1329 (C.A. 2004).

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reputations. They want English law, English judicial integrity and the international publicity which would attend success in an English libel action.5

Decisions like Gutnick could have a leveling effect on defamation law. Although United

States courts that strike the balance more in favor of reputation, is speech chilled?45 Some

evidence suggests that some U.S. broadcast and print media soften stories for the international

market.46 Contrariwise, more recent evidence, drawn from actual journalistic practice, suggests

that publishers are not overly inhibited by the possibility of trans-jurisdictional liability.

Because of the global nature of broadcast, satellite and cable communications, trans-

jurisdictional communications have existed for some time. Our interviews revealed that U.S.

journalists who publish and broadcast overseas seem to be somewhat more conservative than

those who publish in the U.S., but perhaps not decidedly so. As a result, foreign laws do not

unduly affect U.S. coverage.47 For example, the Washington Post and New York Times

management use highly similar procedures and criteria for overseas publications and broadcasts

as they employ for the domestic market.48 In only rare instance do they soften a story for the

overseas market.49 Interestingly, even though the British press was intimidated by Robert

Maxwell, neither the Post nor the Times was threatened by Maxwell regarding their coverage of

5 Berezovsky v. Michaels, [2000] 1 W.L.R. 1004 (H.L) (1023-24).(U.K.)545 See Samuel Fifer & Michael Sachs, The Price of International Free Speech: Nations Deal with Defamation on the Internet, 8 DEPAUL-LCA J. ART & ENT. L. 1 (1997) ("Persons who allege defamation based on on-line speech can potentially choose any nation in the world in which to sue, and can base their choice on the forum providing the most favorable law.").

646 See Weaver & Bennett, supra note 1, at 1188.

747 Freeman Interview, supra note 169; Werner Interview, supra note 167.

848 Id.

949 Freeman Interview, supra note 169.

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him,50 and both treated him no differently than they treated anyone else.51 Cable News Network

(CNN) was a little more cautious about its coverage. Again, its primary concern was with

journalistic accuracy and with "getting it right."52 But, at the same time, because CNN

broadcasts constantly to all parts of the globe, it is more cautious about the threat of defamation

suits,53 and is much more likely to have lawyers routinely engage in pre-publication review of its

broadcasts.54 This conservatism suggests that trans-jurisdictional exposure can inhibit speech.55

But the possibility for trans-jurisdictional liability may be more than offset by practical

considerations. Even if a defamation plaintiff can sue for allegedly defamatory material in a

pro-plaintiff jurisdiction, it may be difficult to achieve an effective remedy. The damages are

likely to be light where the plaintiff is not as famous and his reputation but lightly touched.

And United States jurisdictions have demonstrated a strong disinclination to enforce these

judgments. The Internet age provides one great advantage, publication in far-flung places

requires few real assets located in these jurisdictions. When plaintiffs, armed with a foreign

judgment, turn to United States Courts, they immediately face first amendment considerations.56

For example, in Matusevitch v. Telnikoff,57 a U.S. court refused to enforce a British defamation

050 Id.

151 Id.

252 Weiss Interview, supra note 170.

353 Id.

454 Id.

55 In this regard, it is interesting to note the refusal of a New York court to enforce a British libel judgment. See 13 J. MEDIA L. 205 (1992).

656 See Sarl Louis Feraud International v. Viewfinder, Inc., 406 F. Supp.2d 274 (S.D.N.Y. 2005).

757 877 F.Supp. 1 (D.C. Cir. 1995).

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judgment on the basis that the suit involved protected speech, and that enforcement of the British

judgment would violate the First Amendment to the U.S. Constitution (as well as U.S. public

policy).58 In other words, if a foreign defamation plaintiff wishes to enforce a foreign

defamation judgment in a U.S. court against a public official, a public figure, or a private

individual involved in maters of public interest, the plaintiff will be forced to show that the

foreign judgment was rendered under standards consistent with the U.S. rules applicable to that

type of defamation plaintiff. In the case of British, Australian and New Zealand plaintiffs, it is

impossible to satisfy that standard for judgments obtained in their own countries. Even though

the recent extensions of qualified common law privilege move the law of those countries closer

to the law of the United States, there is still a considerable perceived gulf between the

constitutionally imposed actual malice standard applied in Sullivan and the common law

qualified privilege extensions. Legal cultures are still disparate, and United States courts

nowadays are quite unused to seeing public figures and officials mulct in damages.59

The United States decisions suggest that foreign defamation plaintiffs will be faced with

difficult choice of forum issues. A non-U.S. plaintiff may sue in his home country, but needs to

make sure that the judgment will be enforceable. In other words, in order for a foreign action to

be successful, plaintiff must ensure that he can find sufficient assets outside the United States so

that the judgment can be enforced. If not, the plaintiff will probably be forced to choose

between foregoing litigation or bringing the litigation in the United States under more restrictive

defamation standards. Moreover, an unenforced judgment is unlikely to deter the defendant from

punishing further allegations.858 See also Abdullah v. Sheridan Square Press, Inc., No. 93 Civ. 2515, 1994 WL 419847 (S.D.N.Y. May 4, 1994) (refusing to enforce a British defamation judgment as "antithetical" to the First Amendment).

959 See Logan, supra.

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If a defamation plaintiff decides to sue in the United States, rather than in his home

country, he will find a dramatically different (and, in many respects, unfamiliar and hostile)

environment for the litigation. First, unlike many foreign countries, there is no organized bar of

lawyers who handle defamation cases in the United States.60 In some respects, this fact, by

itself, is both telling and noteworthy. In the United States, which is regarded by much of the rest

of the world as one of the more litigious societies, especially on issues of tort, few if any

plaintiffs’ lawyers specialize in defamation.61 Second (and this, undoubtedly, explains the

absence of a plaintiff’s bar), it makes no economic sense for a U.S. tort lawyer to handle a

defamation case. No sensible attorney would take a defamation case on a contingency fee

basis.62 The chances of obtaining a defamation verdict, and having it sustained on appeal, are

too low.63 For the same reasons, few U.S. defamation plaintiffs are willing to finance

defamation litigation out of their own pockets on a per-hour basis.64 Third, unlike most

Commonwealth jurisdictions, a prevailing plaintiff in a U.S. defamation case is extremely

unlikely to recover an award of “costs” in the sense of attorneys fees.65 Finally, the chances of

ultimate success in the litigation are too low to justify the expense.66

060 See The Right to Speak Ill, supra, at 250-51.

161 See id.

262 Id.

363 Id.

464 Id.

565 Id.

66 Id.

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So, while decisions like Gutnick threaten to revolutionize jurisdictional issues in

defamation litigation, the impact of that decision may be limited to defendants who have

substantial assets located outside the United States.

Despite the paltry threat, recent commentary in American newspapers has been highly

critical of the roaming writ of defamation plaintiffs. Most venom has been poured on the libel

actions brought by Sheikh Khalid Salim A bin Mahfouz. In a book by Rachel Ehrenfeld,

“Finding Evil: How Terrorism is Financed – and How to Stop It,” Mr. bin Mahfouz was linked

with Al Qaeda. The book was published by Bonus Books in the United States. Mr. bin

Mahfouz was granted a default judgment after Ms. Ehrenfeld failed to appear in the English

High Court. Subsequently Ms. Ehrenfeld sought a declaratory judgment that the judgment was

not enforceable in the United States, although bin Mahfouz had not sought to enforce it.67 The

New York Court of Appeals refused to make the declaration.68 More recently, Cambridge

University Press agreed to pulp all unsold copies of “Alms for Jihad” by Burr and Collins, after

bin Mahfouz again brought litigation pointing to defamatory portions of the book, This spate of

books that relate to financing of terrorism are published in a highly charged atmosphere post

9/11. In light of the publications and their defamatory matter that was not challenged as being

true, it is hard to see what the English courts could have done otherwise. Some have asserted

that the threat of law suits will limit the range of information being received in the U.K.69 This 767

Ehrenfeld v. bin Mahfouz (SDNY2006). The Court distinguished Yahoo! Inc. v. La Ligue Contre Le Racisme et L’Antisemitisme, 433 F.3d 1199 (9th Cir. 2006), wherein the California Court was entitled to assert jurisdiction under the California long-arm statute.

868 Id., and see Raymond W. Beauchamp, England’s Chilling Forecast: The Case for Granting Declaratory Relief to Prevent English Defamation Actions from Chilling American Speech, 74 FORDHAM. L. REV. 3073 (2006). A fortiori, no declaratory judgment will be granted on the mere threat of libel action in England: Dow Jones & Co., Inc. v. Harrods, Ltd., 237 F.Supp.2d 394, 413, 446, judgment affirmed 346 F.3d 357 (2d Cir.2003).

969

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is doubtful. Even in the world before the internet, the English Court’s injunction against a

loquacious former MI5 spy in his book “Spycatcher” as revealing state secrets in breach of

confidence, did not effectively preclude that book’s availability to curious British readers. This

in fact formed the basis of the Australia and New Zealand court’s refusal to grant injunctions:

the information was in the public domain.70 And, of course, as witnessed by “Alms for Jihad,” a

defamation action may give a healthy burst of publicity to an academic book of narrow public

appeal. Mr. bin Mahfouz may have scored a pyrrhic victory with his zealous litigation.71

Nevertheless, the threat has had sufficient resonance to draw forth legislative champions

sufficient to float bills in Congress to direct American courts to “not recognize or enforce a

foreign judgment concerning defamation unless the domestic court determines that the foreign

judgment is consistent with the first amendment to the Constitution of the United States.”6

The importance of context should be recognized. The bin Mahfouz litigation has taken

place at a time of reaction to the terrorist attacks on 9/11. Assertions that information is being

repressed about these events is likely to draw an immediate and emotional reaction. At the same

time, there has been a drive for purity of American law when interpreting the open-textured

provisions of the Constitution. A battle has raged about the legitimacy of using foreign sources

Heather Maly, Publish at Your Own Risk or Don’t Publish at All: Forum Shopping Trends in Libel Litigation Leave the First Amendment Unguaranteed, 14 J.L. & POLY 883, 934 (2006).

070 Attorney General v. Guardian Newspapers (No. 2) [1990] 109 (H.L.)(U.K.), Attorney-General (U.K.) v. Heinemann Publishers (Australian) Pty Ltd. (1988) 165 C.L.R. 30 (HCA) (Australia); Attorney-General (U.K.) v. Wellington Newspapers Ltd [1988] I.N.Z.L.R. 129 (New Zealand).

171 cf. Mr. Maxwell, who had greater in terrorem power to chill publication. The power of libel actions to act in terrorem is limited as demonstrated in the “McLibel” litigation. McDonalds’ trade suffered as a result of its aggressive litigation.

6 [HR.______]

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of law and policy to understand the interpretative task. That battle has been sufficiently public

and vexed to color opinion on the very different plane of defamation judgments and their

enforcement.

III. THE INTERNET, ELECTRONIC COMMUNICATIONS, AND THE GLOBAL REVOLUTION

The third major trend in defamation, and perhaps the most important trend, relates to the

democratization of communication speech technology.72 Recent decades have brought with

them a virtual explosion in the types and sophistication of speech technology. This trend

threatens to minimize the tort of defamation and make it more difficult to vindicate reputation

through the legal process.

A. THE “DEMOCRATIZATION” OF SPEECH TECHNOLOGY

The history of speech communication is intricately intertwined with the development of

technology. Prior to Johannes Gutenburg’s development of the printing press in 1436,73 citizens

had limited means at their disposal for communicating with each other. The cheapest method

involved oral methods of communication. But oral methods were an extraordinarily ineffective

means of reaching mass audiences. Of course, communications could be reduced to written text

and distributed. However, prior to the invention of the printing press, written texts could only be

produced slowly and laboriously by hand. The printing press was revolutionary because it

allowed people to disseminate their ideas far more widely and effectively.

272 See Jack M. Balkin, Digital Speech and Democratic Culture: A Theory of Freedom of Expression for the Information Society, 79 N.Y.U. L. REV. 1 (2004).

373 Johannes Guttenberg of Mainz, Germany, created the first printing press when he devised a system of movable and removable type face. When a page was set, it could be used to produce multiple copies of the same printed text.

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Since the development of the printing press, modern humans have witnessed a virtual

explosion in the quantity of speech technologies. In the Nineteenth Century, telegraph lines

made communication much easier and quicker. Then, in the early part of the Twentieth Century,

the development of the telegraph and of broadcast technology (in particular, radio and

television) similarly revolutionized communications technology.

However, recent decades have brought with them a virtual revolution in speech

technology. Traditional printing presses and broadcast technology have been virtually

overwhelmed (although not necessarily rendered obsolete) by the development of an array of

new speech technologies. In addition to the Internet, other developments include the growth of

cable television, satellite communications, and cell phones which now come with text messaging

and an array of other content.

These new technologies have not only revolutionized speech communication, but have

redefined the nature of communication in important respects. The dominant feature of modern

communications is “democratic nature.” In other words, these technologies are available very

inexpensively, and therefore enable mass participation in speech. In this respect, modern

technologies are decidedly different than earlier speech technologies. Printing presses are

expensive to purchase, and therefore were not readily available to all. While someone who did

not own a press could pay a press owner to publish a text, the costs (in terms of printing and

distribution) could be substantial. With broadcast technology, the barriers to entry were even

higher. Because of a limited number of air waves, and therefore a limited number of broadcast

licenses, not everyone could hold a broadcast license. While non-license holders could purchase

air time from license holders, the cost was prohibitive for many.

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With the Internet, as well as with other modern speech technologies (e.g., text

messaging), the barriers to entry and access are extraordinarily low. For one who wants to

communicate via the Internet, a computer and Internet access can be purchased relatively

cheaply. Those who cannot afford to own their own computers, or to pay for Internet access

may gain Internet access cheaply through an Internet café or for free through a public library.

As a result, virtually anyone can gain Internet access in one form or another. Moreover, anyone

who can access the Internet (or, for that matter, a cell phone and text messaging system) can

broadcast information to people around the world through web sites, chat rooms, e-mails, list

services (which retransmit e-mails to everyone on the list), news groups, and the World Wide

Web. . The net effect is that hundreds of millions of people now have access to modern speech

technology, and that number is expected to grow dramatically in the coming years.74

Increasingly, in recent years, U.S. political candidates have relied on the internet to raise funds

and communicate their message, and individuals have used the internet to impact the political

process.

B. DEFAMATION LITIGATION AGAINST NON-MEDIA DEFENDANTS

As Internet traffic increases, it is difficult to know how the Internet will affect

defamation standards. One thing that might happen is that the Internet will help break down

differences between countries in terms of their defamation standards. Internet communications

cross jurisdictional boundaries so that a defamation defendant who resides in a very pro-474 See Reno v. Am. Civil Liberties Union, 521 U.S. 844, 850 (1997) (discussing how nearly forty million people were using the Internet in 1997, and suggesting that approximately 200 million are expected to do so by 1999. The Court estimated that the number of host computers (computers that store information and relay communications) increased from about 300 in 1981 to approximately 9,400,000 by the time of the trial in 1996. Forty percent of these host computers were located outside the U.S.). Witness the recent Australian election and aspects of the U.S. Presidential race that rely on the Internet. Note the financing aspect.

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defendant jurisdiction (i.e., the U.S.) may transmit information into a pro-plaintiff jurisdiction.

If the Internet defendant can be made to answer in the pro-plaintiff jurisdiction, there is a very

real risk of incurring liability. As a result, in communicating on the Internet, potential

defendants may restrict their speech so as to conform to the laws of the most restrictive

jurisdiction to which they transmit information. This is particularly acute where state policies

are at loggerheads. For example, privacy protection in Europe is more extensive than in the

United States. This exposes United States actors to significant liability in Europe. At this level

state instrumentalities may intercede to negotiate compromise.7 The stakes are high as the

ability of entities to transact business may be inhibited.

But, in an Internet era, the tort of defamation may be less valuable to plaintiffs than it

was in earlier periods. For one thing, a plaintiff’s hope for a pecuniary recovery, and the

potentially chilling effect which comes from a large pecuniary award, may be decidedly lower in

the Internet era. In an age of newspaper or broadcast communication, a defamed individual

usually had a “deep pocket” to sue. If the individual defamer cannot pay the award, it is quite

possible (if not likely) that a newspaper, radio station or television station will have aired the

defamatory material, and the newspaper, radio or television can be sued in its own right. By

contrast, in an era of relatively open communication over the Internet, there is an increasingly

likelihood that there will be no large media outlet involved in the communication. In addition,

there is a much greater likelihood that the defamer will not be a person of means. Whether

studies of the broadcast and print media will apply to Internet communications is far from clear.

Indeed, if the Internet has a leveling effect on defamation, it might have the opposite effect: it

7 Reference to restrictive European privacy requirements. Negotiations with the F.T.C. on application of the privacy provisions regarding transactions. See also European penalties for dissemination of Nazi propaganda from U.S. based data bank. Yahoo! Inc. 433 F.3d 1199 (9th Cir. 2006)

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may make individuals feel more free to communicate information. In theory, an Internet

defamation plaintiff located in a pro-plaintiff jurisdiction (i.e., Britain) can bring an action

against a defendant who transmits from a pro-defendant jurisdiction (i.e., the U.S.) in the pro-

plaintiff jurisdiction. In reality, practical considerations may make such trans-jurisdictional

litigation unrealistic. The most noteworthy aspect of the Internet is its democratic nature. Prices

for personal computers have been falling, and anyone with a personal computer, a modem, and

an Internet hookup can gain access to the Internet. Those who cannot afford even this basic

equipment can gain access through an employer, a local library, or a "cybercafé." Once

someone gains access to the Internet, it is relatively easy and inexpensive to communicate

information across jurisdictional boundaries. From a defamation perspective, this makes trans-

jurisdictional defamation suits more problematic. While it may be worthwhile to bring a trans-

jurisdictional suit against a large media conglomerate which has assets all over the world, it may

not be financially worthwhile to pursue defendants with few assets, especially defendants who

reside in other countries.

In addition, the chances of obtaining an injunction prohibiting defamatory speech are

much lower. Much will depend on where the defamer is located. For example, in the United

States, there is a very strong prohibition against the issuance of prior restraints.75 As a result, if

an Australian or New Zealand plaintiff is upset regarding material being published in the United

States over the Internet, there would be very little chance of obtaining an injunction prohibiting

the publication.76 A similar presumption against injunctions prevails in both Australia and

England as well.

575 See Near v. Minnesota, 283 U.S. 697 (1931).

676 This was established long ago in Bonnard v. Perryman, [1891] 2 Ch. 269.

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From a defamation perspective, this makes trans-jurisdictional defamation suits more

problematic. While it may be worthwhile to sue a large corporation with assets all over the

world, it may not be financially worthwhile to pursue defendants with fewer assets, especially

defendants who reside in other countries. And since assets are mobile or can be held outside the

media’s corporate form, it is likely that these will be persons of straw. The cost of the litigation,

by itself, might be prohibitive. Moreover, unless the defendant has substantial assets,

satisfaction of any judgment may be difficult or impossible.

The other major difficulty is that even a successful suit might not terminate the

defamation. Suppose, for example, that a small group of dissidents live in the United States, and

are determined to publish allegations against the government of their home country.8 Perhaps

powerful plaintiffs could co-op the government to regulate. Even if the defamed governmental

officials had the financial wherewithal to sue one dissident, and even if they gained a recovery,

there is nothing to prevent a second dissident (or, for that matter, a third, fourth, fifth or sixth)

from publishing similar allegations on his computer. Is it realistic to think that the defamed

officials will bring multiple U.S. suits against the dissidents? Moreover, even if the defamed

officials were willing to sue, what is to prevent the dissidents from publishing their allegations

through an "anonymous remailer" (which strips all identifying material off a communication)?77

Ultimately, the practicalities of such trans-jurisdictional litigation are likely to overwhelm

potential plaintiffs.

8 ? This is a common occurrence in democratic western nations where the free press is used by groups who have been exiled by, or have fled, repressive regimes. If the “bad press” rises to a high level, that traduced government may turn to diplomatic pressure or work within the structure of the sheltering government to undermine the dissident group.

77 On the right to speak anonymously see Lyrissa Barnett Lidsley and Thomas F. Cotter, Authorship, Audiences, and Anonymous Speech, 82 NOTRE DAME L. REV. 1537 (2007).

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Of course, some defamation defendants will be wealthy and it may be worthwhile to sue

them. For example, it might be possible (and profitable) to sue ISPs like America Online or

CompuServe.78 In theory, traditional defamation theory allows recovery against anyone who

publishes defamatory material.79 The difficulty is that the laws of some countries provide that

book vendors and news sellers cannot be held liable if they do not have actual knowledge of the

defamatory statements being made on their system.80 Since many Internet service providers

(ISPs) are like book vendors and news sellers in that they exercise little content control, recovery

against them may be difficult.81 Even if an ISP does exercise some content control over the

communication, recovery may be difficult. In the U.S., the Communications Decency Act

purports to exempt such providers from defamation liability: "[n]o provider or user of an

interactive computer service shall be treated as the publisher or speaker of any information

provided by another information content provider."82 So, the possibility of recovery against an

Internet provider seems remote, at least in the U.S.83

878 See James B. Speta, Book Review: CYBER RIGHTS: DEFENDING FREE SPEECH IN THE DIGITAL AGE, 2 GREEN BAG 227 (1999).

979 Stratton Oakmont, Inc. v. Prodigy Services Co., 23 Media L. Rep. 1794 (N.Y.Sup.Ct. 1995).

080 Id.

181 Carafano v. Metrosplash.com, Inc., 339 F.3d 1119 (9th Civ. 2003) (finding that statutory immunity should be given to computer matching service for a false and hurtful profile) cf. Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003) (immunity maintained provided the ISP reasonably understands that the original source intended the content to be published on the Internet)

282 42 U.S.C. 230(c)(1).

383 See Zeran v. America Online, 958 F. Supp. 1124 (E.D. Va. 1997), aff'd, 129 F.2d 327 (4th Cir. 1997), cert. denied, 118 S. Ct. 2341 (1998); Cubby v. CompuServe, 776 F. Supp. 135 (S.D.N.Y. 1991).

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In the republishing context the usual tactic is to put the secondary publisher on notice of

the defamatory content of the publication. Thus to warn those in the pipeline of distribution will

effectively half the wider distribution of the defamatory article. In the Internet, one could put

the ISP on notice. However, that would be effective only if the same defamatory material was to

be broadcast, as if the target had notice that the material was about to be broadcast. Both are

unlikely. For the former, the material is sent electronically in an instant; for the latter it is most

unlikely that the publisher would tip his hand, and for the allegedly traduced official information

about all the ISPs would have to be available.

Of course, a given country might choose to apply different defamation rules to ISPs.

Indeed, a country that wishes to repress defamatory speech may view impose liability as a means

of gaining control. Of course, even if the law of a particular jurisdiction allows recovery against

an ISP, it may be difficult or impossible to enforce sue the ISP if it does business in a pro-

defendant jurisdiction. As a matter of jurisdiction, a defamation plaintiff may be able to sue the

ISP in a foreign jurisdiction and to obtain recovery there. However, enforcement of that

judgment may be difficult unless the defendant has sufficient assets in the foreign jurisdiction.

In the U.S., for example, the First Amendment to the U.S. Constitution makes it difficult to

enforce defamation judgments obtained in other countries. As noted, U.S. courts have refused to

enforce English defamation judgments on the basis that the suit involved protected speech, and

that enforcement of the English judgment would violate the policies that undergird the First

Amendment to the U.S. Constitution.9 So, although a defamation plaintiff may be able to sue a

9 See also Abdullah v. Sheridan Square Press, Inc., No. 93 Civ. 2515, 1994 WL 419847 (S.D.N.Y. May 4, 1994) (refusing to enforce a British defamation judgment as “antithetical” to the First Amendment); Desai v. Hersh, 719 F.Supp. 670 (N.D. Ill. 1989) (refusing to apply Indian defamation law in a U.S. proceeding); Bachchan v. India Abroad Publications Inc., 154 Mis.2d 288, 585 N.Y.S.2d 661 (Sup.Ct.1992) (similar); Ellis v. Time, 26 Media L. Rep. 1225 (D.D.C. 1997). But cf. Paul Berman, id., at p. 1234 (arguing that the enforcement would not amount to state action, and the policy ought not usually preclude enforcement of judgments; criticizing Telnikoff, as an example of U.S. courts forcing U.S. policy onto English courts legitimately seized with jurisdiction).

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defendant in another jurisdiction, recovery of the judgment may be difficult unless the

defendant's assets can be found in a country which provides defamation defendants with fewer

protections.

C. DEFAMATION AND CRITICISM OF GOVERNMENT

Globalization of the internet will reduce government’s ability to repress criticism. Recall

that technology caused government disquiet when the printing press allowed an unprecedented

volume of critical material to circulate. Government’s response was the prosecution of seditious

libel created by England’s Star Chamber in1606 in the case of de Libellis Famosis,84 That crime

made it a punishable offense to criticize the government or governmental officials (and, initially,

the clergy as well).85 The crime was premised on the notion that criticism of the government can

breed disrespect for governmental as well as for clerical authority. Moreover, since truthful

criticism might breed disrespect as effectively as untruthful criticism, truth was not a defense in

a seditious libel prosecution. Indeed, because the common law assumed that truthful criticisms

were potentially more damaging than false criticisms, truthful criticisms were punished more

severely.10

484 77 Eng.Rep. 250 (Star Chamber 1606).

585 See William T. Mayton, Seditious Libel and the Lost Guarantee of a Freedom of Expression, 84 COLUM. L. REV. 91, 98 (1984).

10 The centrality of governmental criticism is attested to in New York Times v Sullivan, and in Derbyshire County Council v. Times Newspaper [1993] A.C. 534. Cf. Ian Loveland, Defamation of “Government”: Taking Lessons for America? 14 Legal Stud. 206 (1994). Much of the debate regarding free speech concerns its extension to speech in the non-political sphere. Is the exercise of the right to free speech part of the individual’s right of self-actualization? This calls for clarification about the foundation of the right. See Ronald J. Krotoszynski, Jr., The First Amendment in Cross-Cultural Perspective: A Comparative Legal Analysis of the Freedom of Speech. As the right evolves, courts will focus on this question to give bounds to the right.

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Even though the crime of seditious libel has been abolished in many countries, including

the United States,86 it is not uncommon in some countries for politicians to pursue their critics

through the tort of defamation. In Australia, for example, there are numerous examples of

politicians bringing or threatening defamation actions. In Commonwealth jurisdictions, in which

a prevailing plaintiff can recover costs (defined broadly to include attorneys fees), the possibility

of a defamation action can serve as a significant restraint on those who would criticize the

government. With the shift in legal doctrine such actions should be discouraged. But even

more, the internet will open up criticism.

Today, dissidents who want to transmit allegedly defamatory information to their home

country can easily do so through the Internet, and can do so at distance.11 Even if the defamed

governmental officials can sue one dissident, and even if they gain a recovery, the defendant

may be impecunious (or relatively so) so that the plaintiff gains little. Indeed, a relatively

sophisticated plaintiff may transmit information through anonymous remailers which strip all

identifying marks off the original communication so that it is difficult or impossible to identify

the source of the defamation. The bottom line is that, for a government that actively tries to

control the flow of information about itself, the Internet is a nightmare because a successful

judgment does not deter future defamation.

In theory, a government might be able to use other remedies against the dissidents,

including injunctive relief, and the possibility of a criminal defamation action. The difficulty is

that the availability of injunctive relief, as well as a criminal defamation action is heavily

686 See Garrison v. Louisiana, 379 U.S. 64 (1964). But see Ron Krotoszynski and Clint Carpenter, The Return of Seditious Libel, ___ U.C.L.A. L. REV. ___ (2008) (arguing that restrictions on assembly have infringed first amendment rights under the Petition Clause).

11 [Note, however, that China has mounted a massive attempt to insulate itself from criticism. The long-term viability of this policy is much debated. See Fellows, The Atlantic, Feb. 2008.]

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dependent on where the dissidents reside. If they reside outside the country where the defamed

government exists, it may be difficult to use these remedies. In the U.S., injunctive relief is

effectively precluded by decisions such as Near v. Minnesota.87 That case involved a suit by the

county attorney of Hennepin county who sued to enjoin publication of what was described as a

"malicious, scandalous and defamatory newspaper." In Near, the Supreme Court rejected the

injunction articulating a broad rule against prior restraints. In addition, it will be virtually

impossible to bring a criminal defamation action in the U.S. While criminal defamation actions

were permissible at one point, the U.S. Supreme Court's holding in N.Y. Times Co. v. Sullivan

effectively precludes so-called seditious libel prosecutions now.

The practical problems multiply when a group of dissidents decide to act in concert.

Even if a defamation plaintiff can gain a judgment against one dissident, there is nothing to

prevent other dissidents from publishing similar allegations on their computers (or through

libraries or cybercafés). A defamation plaintiff may be forced to bring multiple suits against the

dissidents, and again those suits may be effectively unenforceable. Moreover, even if the

defamed officials could sue the dissidents collectively, there is nothing to prevent the dissidents

from publishing their allegations through an "anonymous remailer." Ultimately, the

practicalities of trans-jurisdictional litigation are likely to overwhelm potential plaintiffs.

We have pointed out that the technology of worldwide instantaneous communication will

swamp any formal causes of action in the most pro-plaintiff possibilities. The cake is simply not

worth the candle. This result is not inconsistent with defamation law. The sheer volume and

diversity of opinion on the internet, through blogs and chat rooms, carries a signal also of its

unreliability. The Courts have always taken more seriously and ascribed greater burdens to these

787 283 U.S. 697 (1931).

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publications that are deliberate and taken as highly reliable by the public.88 The hurley-burley of

the internet makes its defamatory material low on the reliability scale, particularly in relation to

political speech. Furthermore, the internet facilitates a like kind response mitigating damage.89 ]

The internet increases the voice of those who under traditional technologies were mainly

muffled.90 Like Einstein’s theory of the time and space continuum, the technology of the

internet has the effect of changing our view of the basic element (here right) at play – freedom

of speech. In New York Times v. Sullivan, a central idea was Meiklejohn’s political theory of

free speech.91 It concerned political speech in his analogy to the town hall meeting where things

worth saying get said.92 The internet forces us to look at freedom of speech allowing a wider

conception of an individual exercising a right to contribute to democratic culture. The medium

promotes a widespread democratic participation. In doing so, individual liberty is enhanced.

And it is this that must be protected. Capital and property, Balkin insists, should not be allowed

to trench on this right.93 Property concepts in intellectual property and ownership could frustrate

this wider conception of free speech as cultural construction. But it is not apparent that

88 See Masson v. New Yorker Magazine, Inc., 501 U.S. 496 (1991).

989 The ability to replay plays a large part in American jurisprudence in classifying the target of the defamation a public figure drawing protection under N.Y.T. v Sullivan, see Wells v. Liddy, 186 F. 3d 505 (4th Cir. 1999).

090 Jack M. Balkin, How Rights Change: Freedom of Speech in the Digital Era, 26 SYD. L. REV. 5 (2004) (hereafter “Balkin”).

191 ALEXANDER MEIKLEJOHN, POLITICAL FREEDOM: THE CONSTITUTIONAL POWERS OF A PEOPLE (1960).

292 Id. At 26.

393 See Balkin, supra.

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defamation rules attending to publications on the internet have an effect unless the courts were to

grant broad injunctions and introduce intrusive regulation. That is not the course pursued in the

Western World. Even when governments are minded to exercise draconian regulation, such as

in China, those efforts fall far short of being effective.12 Defamation action may be a corrective

to this new frictionless world by performing a function of a declarative judgment: the judiciary,

with its reputation for fairness, can speak to the accuracy of publications. The traduced person

will not have the credibility through his own voice. Through the court’s voice, the public will

have reliable information. But in the realities of the World Wide Web nothing in an adverse

judgment will prevent the circulation of the publication if it has a salience with the public. The

challenge is not the form of legal rules, but the description of non-legal norms that will govern

behavior in cyberspace.94 To have an outside referee call a foul is salutary in making

information more accurate but does not unduly disturb the rigorous conversation that promotes a

rich social construction.95

CONCLUSION

As we have seen, there is a movement towards “globalization” in regard to the tort of

defamation. There has been some convergence between countries in terms of defamation

standards, and a worldwide trend towards providing greater protection for freedom of

expression. Although this trend began in the United States in the 1960s on a constitutional

12 [See the Fellows Atlantic, Feb. 2008.]

494 See Ellickson, Property Rights in Cattle Ranching; Solove; Zittrain.

595 Ross Cranston, Law Through Practice: London and Liverpool Commodity Markets c. 1820-1975, L.S.E. Working Paper, 14/2007 (describing the function of the law in the subject markets).

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basis,96 the movement has continued through the expansion of common law qualified privilege in

various Commonwealth jurisdictions.97

Exceeding the moment of the changes in defamation standards is the growth of speech

technology, particularly the Internet. Defamation litigation will be reshaped. Under decisions

like Dow Jones & Co., Inc. v. Gutnick,98 defamation plaintiffs have the potential to pull far-away

defendants into court. However, because of recent decisions regarding the enforcement of

foreign defamation judgments, a non-U.S. defamation plaintiff will face formidable barriers in

enforcing a foreign defamation judgment in a U.S. court.

Another major “trend” in defamation litigation is the democratization of speech

technology. For the first time in the history of mankind, it is relatively simple and easy for

people to communicate with each other. As a result, even people of relatively modest means, or

impecunious individuals, have the ability to communicate easily and effectively with people all

over the world. Everyone may become a journalist.13 Democratization through the internet

threatens to reshape many aspects of modern defamation law, especially in regard to trans-

696 Zittrain, Id.at246, arguing that the endurance of “our current infrastructure” depends on “the sum of the perceptions and actions of its user”; “generosity of spirit” is the “first line,” but then he calls for roles of “traditional state sovereigns.” See New York Times Co. v. Sullivan, 376 U.S. 264 (1964).

797 See Reynolds v. Times Newspapers, 3 W.L.R. 1010, 1024D (Eng. H.L. 1999); Jameel v. Wall Street Journal Europe Sprl [2006] UKHL 44; Lange v. Australian Broadcasting Corporation (1997) 189 C.L.R. 520, 521 (Austl.); Lange v. Atkinson. [1997] 2 N.Z.L.R. 22, 27 (H.C.); see also PATRICK MILMO AND W V H ROGERS (EDS), GATLEY ON LIBEL AND SLANDER, ch. 14 (10th ed., London: Sweet & Maxwell 2004); RUSSELL L. WEAVER, ANDREW T. KENYON, DAVID F. PARTLETT & CLIVE P. WALKER, THE RIGHT TO SPEAK ILL: DEFAMATION, REPUTATION AND FREE SPEECH 77-130 (2006).

898 [2002] H.C.A. 56.

13 Hence, in the area of contempt of court for failure to deliver to tribunals and courts information obtained confidentially, the claim of “reporter’s privilege’ could have large consequences in the administration of justice: Mary-Rose Papandrea, Citizen Journalism and the Reporter’s Privilege, 91 Minn.L.Rev.515 (2007).

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jurisdictional litigation. Internet communications are quick, easy and inexpensive, and virtually

anyone can gain access to the "net." As a result, defamation litigation will be a hollow threat in

deterring speech.

The final major trend in defamation litigation is the potential for reshaping defamation

standards. As we have seen, a number of Commonwealth countries (e.g., New Zealand,

Australia and England) have followed the United States in extending free speech protections to

potentially defamatory speech. Because the Internet is so much more accessible than print and

broadcast technology, and because it achieves such a high degree of penetration into the “speech

market,” the Internet may cause the courts to rethink their free speech doctrine as applied to

defamation. We may see that defamation liability plays a part in signaling the reliability of

information cycling in cyberspace. Any chilling effect is set off by the benefits of a quality

signal. But liability is a side show. The production of information will be influenced by non-

legal norms that will grow in cyberspace. Here in globalization is the possibility of deliberative,

democratic conversation that enhances democratic culture and individual self-realization. We

carefully say “possibility,” for dangers lurk in the internet that caution a utopian vision.14

14 See Zittrain at 234 (pointing to the needs for “enduring solutions and a new generation of privacy problems brought about by the generative Internet…”).

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