Tort Law Seminar 4: Defamation (2024-2025) PDF

TORT LAW Lectures – 10 hours Licence 2 – Semestre 3 – University Year 2024-2025 Eoin P. Campbell LLB Solicitor FACULTÉ DE DROIT 10 place des Archives – 69288 LYON CEDEX 02 en convention avec la Faculté de Droit et de Scienc...

TORT LAW Lectures – 10 hours Licence 2 – Semestre 3 – University Year 2024-2025 Eoin P. Campbell LLB Solicitor FACULTÉ DE DROIT 10 place des Archives – 69288 LYON CEDEX 02 en convention avec la Faculté de Droit et de Science Politique de l’Université Lumière – Lyon 2  TORT LAW Seminar IV Defamation: (i)General Principles (ii) The USA FACULTÉ DE DROIT 10 place des Archives – 69288 LYON CEDEX 02 en convention avec la Faculté de Droit et de Science Politique de l’Université Lumière – Lyon 2  Defamation: Definition General Principles in Common Law Countries The definition of defamation generally accepted as being the publication or broadcast of a false statement which subjects the targeted person to hatred, ridicule or contempt.  Defamation: Definition General Principles in Common Law Countries This is widely interpreted by courts all over the world as meaning a (false ) statement which tends to lower the reputation of the relevant person in the eyes of ‘right-thinking ' people. The ‘ right-thinking ' person is basically the ‘average' law-abiding man or women of ‘normal' opinion and moral standards.  Defamation: Definition Truth For any claim or accusation to be deemed defamatory it must be untrue. If there is even an element of truth in what has been said or published a claim for defamation will, in all likelihood, fail. No matter how unpleasant or insulting the accusation or statement the law will not hold it to be defamatory unless it is false.  Defamation: Definition Truth e.g. See the case of novelist and former Conservative Party MP Jeffrey Archer; Jeffrey Archer convicted criminal July 2001  Defamation: Definition Libel = Written form of defamation Slander = Spoken defamation  Defamation: Definition Exceptions: Privilege In certain circumstances (namely in a court of law, Parliament) even if a statement is untrue and is damaging to a person's reputation, the speaker cannot be sued for slander  Defamation: Definition Exceptions: Privilege e.g. Ian Paisley 's use of “Parliamentary Privilege” in the British House of Commons in 1999 Terror of farmer named by Paisley as IRA killer | UK news | The Guardian Eugene Reavey declared innocent in Parliament Defamation: Definition Exceptions: Defamation: Definition Exceptions : Shoplifting  Defamation: Definition Exceptions: Shoplifting To be falsely accused of shoplifting and having your bags searched by a store detective or shop assistant can be both a distressing and insulting experience, particularly if same is done in full view of other shoppers. Such an incident does not constitute a defamation of the wrongly accused shopper. The law recognises that the shop has a right to protect their goods and that errors such as these (within reason) will  Defamation: Contrast between the UK and the USA  Defamation: Defamation laws in the USA B. What must I prove if I am the plaintiff in a defamation case?  Defamation: The USA What must I prove if I am the plaintiff in a defamation case? If you are the plaintiff in a defamation case it first depends upon whether or not you are a public figure or a private figure.  Defamation: The USA What must I prove if I am the plaintiff in a defamation case? Public Figure If you're a public figure in a defamation case, in addition to a false statement made about you that was published to a third party you also need to prove that that statement that was made was false , and was made maliciously or recklessly  Defamation: The USA What must I prove if I am the plaintiff in a defamation case? Private Figure If you are a private figure, all you need to prove is that false statement was made about you negligently but additionally you still have to prove that you were damaged. Sometimes this is a very difficult burden to prove. Defamation: The USA The New York Times v Sullivan (1964) The New York Times v Sullivan (1964) → Three points to remember about the context: 1. Widespread segregation continued to dominate life in the southern states in the late 1950s and early 1960s. Montgomery as a perfect example The New York Times v Sullivan (1964) → The text s.8: “One of the acute and highly emotional issues in this country arises out of efforts of many people, even including some public officials, to continue state-commanded segregation of races in the public schools and other public places, despite our several holdings that such a state practice is forbidden by the Fourteenth Amendment”  The New York Times v Sullivan (1964) The Fourteenth Amendment Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. The New York Times v Sullivan (1964) → Three points to remember about the context: 2. Current criticism of the situation through an editorial advertisement, placed in the appellant's newspaper, entitled "Heed Their Rising Voices” The New York Times v Sullivan (1964) → See the text: §5 “[...] Thus, we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. [...]” The New York Times v Sullivan (1964) → Three points to remember about the context: 3. Existing state libel laws Alabama's libel law did not require the plaintiff to prove that an advertisement personally harmed him. Statements were called “libelous per se”. Malice was presumed. The New York Times v Sullivan (1964) → What injustice does the plaintiff seek to rectify? Plaintiff : “ Respondent L. B. Sullivan is one of the three elected Commissioners of the City of Montgomery, Alabama.” [...]  The New York Times v Sullivan (1964) → The text: §2 “ He brought this civil libel action against the four individual petitioners, who are Negroes and Alabama clergymen, and against petitioner the New York Times Company, a New York corporation which publishes the New York Times, a daily newspaper.” The New York Times v Sullivan (1964) → What injustice does the plaintiff seek to rectify? Injustice: defamatory advertisement in the New York Times The New York Times v Sullivan (1964) How the case moved through the court system  The New York Times v Sullivan (1964) → What are his arguments?- The text: §2 “Respondent's complaint alleged that he had been libeled by statements in a full-page advertisement that was carried in the New York Times on March 29, 1960. Entitled "Heed Their Rising Voices,"  The New York Times v Sullivan (1964) The text: §3 “ [...] Although neither of these statements mentions respondent by name, he contended that the word "police" in the third paragraph referred to him as the Montgomery Commissioner who supervised the Police Department, so that he was being accused of "ringing" the campus with police. The New York Times v Sullivan (1964) The text: §3 He further claimed that the paragraph would be read as imputing to the police, and hence to him, the padlocking of the dining hall in order to starve the students into submission. [...] It is uncontroverted that some of the statements contained in the two paragraphs were not accurate descriptions of events which occurred in The New York Times v Sullivan (1964) → In other words His name was not directly mentioned but implied from expressions such as “police” and some of the facts evoked were not even true. The New York Times v Sullivan (1964) → What is the main legal principle involved in this case? - Text §1 “We are required in this case to determine for the first time the extent to which the constitutional protections for speech and press limit a State's power to award damages in a libel action brought by a public official against critics of his official conduct.” The New York Times v Sullivan (1964) → In other words Has one state the power to limit free speech/ freedom of speech in a case of defamation where − The plaintiff is a public figure − The defendant is a critic of the plaintiff’s official conduct? The New York Times v Sullivan (1964) → In other words Principle of free speech and the freedom of the press Secured in Amendment I to the US constitution Applied to the states by Amendment XIV.  The New York Times v Sullivan (1964) → What was the decision? - Text §4 “We reverse the judgment. We hold that the rule of law applied by the Alabama courts is constitutionally deficient for failure to provide the safeguards for freedom of speech and of the press that are required by the First and Fourteenth Amendments in a libel action brought by a public official against critics of his official conduct.” The New York Times v Sullivan (1964) → In other words First verdict in favor of the plaintiff was quashed Alabama rule of law in libel cases is unconstitutional as it infringed the first amendment right to free speech and free press.  The New York Times v Sullivan (1964) Remember the importance of the First Amendment in the United States! “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” The New York Times v Sullivan (1964) First Amendment: The concept of free speech is therefore a much broader one in the USA than it is in Europe. This influence is clear in the present case.  The New York Times v Sullivan (1964) First Amendment : Brainwashed by the Westboro Baptist Church (Part 1/2)  The New York Times v Sullivan (1964) → On what grounds? - Text §6 “A rule compelling the critic of official conduct to guarantee the truth of all his factual assertions -- and to do so on pain of libel judgments virtually unlimited in amount -- leads to a comparable "self-censorship." The New York Times v Sullivan (1964) → In other words Alabama libel laws amount to censorship  The New York Times v Sullivan (1964) → On what grounds? - Text §6 “Under such a rule, would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is, in fact, true, because of doubt whether it can be proved in court or fear of the expense of having to do so.” The New York Times v Sullivan (1964) → In other words People who may want to criticize officials will be afraid of doing so because they have to pay and prove that their criticism is true. No more public debate The New York Times v Sullivan (1964) → On what grounds? - Text §8 Mr. Justice Black The New York Times v Sullivan (1964) → On what grounds? - Text §8 MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS joins, concurring. “The half-million-dollar verdict does give dramatic proof, however, that state libel laws threaten the very existence of an American press virile enough to publish unpopular views on public affairs and bold enough to criticize the conduct of public officials..”  The New York Times v Sullivan (1964) → In other words Alabama state libel laws means the death of a free, independent and impartial press able to voice criticism of public officials' conduct  The New York Times v Sullivan (1964) → On what grounds? - Text §6 “The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with "actual malice" -- that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” The New York Times v Sullivan (1964) → In other words If the plaintiff is a public figure, he will have to prove that the defendant deliberately published false information − knowing it to be false − or ignoring whether it was true or not (recklessness)  The New York Times v Sullivan (1964) → On what grounds? - Text §7 “[...] Applying these standards, we consider that the proof presented to show actual malice lacks the convincing clarity which the constitutional standard demands, and hence that it would not constitutionally sustain the judgment for respondent under the proper rule of law. [...] We think the evidence against the Times supports, at most, a finding of negligence in failing to discover the misstatements, and is constitutionally insufficient to show the recklessness that is required for a finding of actual malice.” The New York Times v Sullivan (1964) → In other words No proof of actual malice was brought to the court The New York Times was negligent (some statements were false) But negligence is not sufficient to prove recklessness/ actual malice. The New York Times v Sullivan (1964) → What are the consequences of this decision? To strike down Alabama libel laws as unconstitutional in cases where the plaintiff is a public figure As they violated the guarantee of free speech under the First Amendment of the Constitution. The New York Times v Sullivan (1964) → What are the consequences of this decision? To shift the onus of proof onto the plaintiff (when he is a public figure ) To prove that, at the time the defamatory statements were made, the defendant − either knew them to be false − or was reckless as to whether they were or not. The New York Times v Sullivan (1964) → What are the consequences of this decision? To shift the onus of proof onto the plaintiff (when he is a public figure ) To prove that, at the time the defamatory statements were made, the defendant − either knew them to be false − or was reckless as to whether they were or not. The New York Times v Sullivan (1964) → What are the consequences of this decision? Research What is the difference between; a ‘Public Figure’ and a ‘Private Figure’ in US Defamation law? Legacy of the New York Times vs Sullivan Donald Trump’s threat to sue the New York Times for defamation, explained by legal experts Donald Trump Threatens to Sue The New York Times Case Study: John C. Depp, II v. Amber Laura Heard (2022)  Why and where did Johnny Depp sue Amber Heard in 2022? In December 2018, Amber Heard published an op-ed in The Washington Post Title: “I spoke up against sexual violence – and faced our culture’s wrath. That has to change”. [In the article, she casts herself as a public figure representing domestic violence. She does not explicitly name Johnny Depp]. Depp sued her (not the newspaper or the publisher, unlike in the British case) in Virginia (where the printing presses and the servers of The Washington Post are located). How did both parties present the case in their opening statements? What are their strategies? Plaintiff Harm to Depp’s reputation, career and family Stresses the great professional reputation that J. Depp spent almost 30 years building Claims that this reputation was destroyed by a lie, which characterized J. Depp as an abuser Stresses the devastating impact of words / publication The field in which Depp works make it hard for him to get a job: Hollywood is concerned with the public backlash of those accusations Plaintiff Their narrative Heard’s publication sprang from Depp’s request for a divorce; she first aimed to stay married to him, and then to “recast herself as an abuse survivor” Plaintiff’s personal history No accusation of abuse in the past Defendant Issue: is Amber Heard’s article protected free speech under the 1st amendment? Anticipates and counters the plaintiff’s strategy Will rely on Depp’s popularity to turn the case into a soap opera, a cheap spectacle Highlights discrepancy between Depp’s public image and his real personality Depp’s popularity: major challenge for the defense Therefore tries to change the image of Depp in the jury’s mind Defendant Content and aim of the article Does not target Depp explicitly, and is not about their relationship -> is not intended to harm his reputation The article is not personal, it is political: it is about strengthening laws protecting victims of domestic violence. Context: social movement. Heard was asked to contribute to it. She spoke about her experience of reporting domestic abuse -> nothing false about it Motive of plaintiff To destroy Amber Heard’s life st What’s at stake: protecting speech and the 1 amendment The Verdict Summary of the trial (evidence brought to court, testimonies): “Depp v Heard: the key turning points in the seven-week trial” Then, read this article from The Guardian about the verdict: “Why did the Depp-Heard libel outcomes differ in the US and UK?” What kind of evidence was brought to court? Photographs, text messages, audio recordings, etc. Some of Depp’s ex-partners testified, for the plaintiff and for the defense. The trial lasted 6 weeks. What verdict did the jury reach? They found for Depp. The jury found Mr. Depp was defamed by Ms Heard -> he was awarded $15 million in compensatory and punitive damages, but the judge capped the punitive damages total in accordance with legal limits for a total of $10.35 million. They also found that Ms Heard had been defamed by one of his lawyers (countersuit) -> the jury awarded her $2 million in damages. Was the verdict surprising? Yes. Two years before, a British judge found that the allegations were substantially true. It is all the more surprising as it is easier, in theory, to win a libel case in the UK than in the US. Why is it usually much easier to win a libel case in the UK than in the US? In general, free speech is granted much more protection in the US (for example, hate speech is not banned unless it aims to provoke violence contrary to the UK and to most European countries which forbid incitement to racial and religious hatred). The right to free speech is a sacrosanct fundamental right protected by the 1st Amendment to the Constitution. Why is it usually much easier to win a libel case in the UK than in the US? More specifically, libel laws are weaker. The main differences are: in the US, the plaintiff has the burden of proof. Here, it was up to Depp to prove that the publication was false. Moreover, the plaintiff must proof that the statement was published with malice (= intent to cause harm), by “clear and convincing evidence” (the burden of proof is higher). In the UK, the defendant has the burden of proof: Newsgroup needed to prove that the statement was true (which it did, on the “balance of probabilities”). What could be the consequences of the verdict on free speech and public debate in the US? The defamation case did not concern trivial gossip about celebrities’ private lives. It dealt with a major social issue, namely domestic abuse, and more generally with abuse against women. It therefore concerned a matter of public interest. Given the publicity of the trial and the verdict, people fear that the case will deter women from speaking out in the future, for fear of financial retribution. Indeed, the verdict may have a “chilling effect” on speech: victims of domestic abuse (especially from powerful men) might be reluctant to come forward and publish information about the abuse. It might also deter them from filing a criminal complaint, given the attacks on the credibility of Heard in the case (although one should stress that the case was not a criminal case about assault or sexual assault but a civil libel case). What could be the consequences of the verdict on free speech and public debate in the US? On the other hand, people argue that the #metoo movement has gone too far and that it has led to a kind of popular justice which takes little notice of the notion of presumption of innocence and baffles due process. Some professional careers or private lives have been ruined following allegations which were not brought to court of justice, but to the court of public opinion. This case, however, was also turned into a melodrama by the social media frenzy surrounding its broadcast.  Exam: Length - 1 hour xxxday, xxth ???????? 202? x:xxpm  Exam: Section A : 3 - 4 short factual questions (10 points total) Section B (10 points): Written expression