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Reputation law: differences between the English and US approach in libel and privacy

October 2009 - Media, Entertainment & Sport. Legal Developments by Schillings.

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The Internet is a growing threat to corporate and individual reputations, and with more than 1.46 billion people worldwide using the internet, with access to a myriad of social networking sites, wiki sites and blogs, it would appear that anyone with a computer can become a publisher – the age of the ‘citizen journalist’ is upon us.

This means that a reputation (whether personal or corporate) can be damaged by many more routes than via the traditional media. The financial consequences of a damaged reputation can have long-lasting effects; businesses will suffer globally in all local markets in which they operate where negative or inaccurate stories are published and read on the internet. Additionally, the speed at which news and comment spreads across the web means that the damage to reputations is felt right across the globe at a quicker pace than we have ever seen before.

The laws of defamation and privacy, alongside a well-planned media and public relations strategy, can be deployed to gain worldwide vindication. With this is mind, it is helpful to understand the different approaches taken by the English and US courts.

By its very nature, the law relating to reputation is closely linked to social attitudes and conditions. What is acceptable in one place at one time may be considered to be offensive, even defamatory, in a different context or in a different age. It is therefore of no surprise to see that while the laws of defamation and privacy in England and the US share common origins, there has been considerable divergence in the respective laws of each country over time. We consider some of the key differences below and explore how, despite such divergences, the countries’ attitudes in relation to online threats may be converging.

Historical Position

The law of the US and England in relation to libel and privacy is rooted in the common law. The tort of libel in England is broadly the same as that applied in the majority of the US. However, the modern interpretation of the first amendment to the constitution radically altered the approach of the US courts to defamation law. This modern interpretation is still best exemplified in the leading case of Supreme Court in New York Times v Sullivan [1964]. As explained in more detail below, New York Times established the ‘actual malice’ standard that has to be met before publications will be deemed to be defamatory. The landmark case led to a huge decline in the number of successful, or even potential, libel actions in the US.

There are now significant differences between libel laws in the US and England on such fundamental issues as privilege, fair comment and the burden of proof on the issue of falsity.

Some Key Distinctions

Whereas in the US plaintiffs have to show that material published about them is substantially false, under English law the defamatory material is presumed to be false unless and until the defendant is able to demonstrate otherwise. Under English law it is the responsibility of the defendant to prove the truth of the defamatory allegation. Any litigator knows, regardless of the cause of action, the difficulties inherent in shouldering the burden of proof.

Further, under US law the defamatory statement must have been made ‘with fault’. The extent of the fault depends primarily on the status of the plaintiff. Public figures, such as government officials, celebrities, well-known individuals, and people involved in specific public controversies, are required to prove actual malice (ie that the defendant knew their statement to be false or recklessly disregarded the truth or falsity of their statement). In contrast to US law, English law holds that all potential claimants can sue, regardless of whether they are public figures or not, and need not show malice to do so.

Malice – understood in this sense to mean not actually believing that a statement is true – does not need to be established by a claimant under English law unless the defendant can establish a defence of fair comment or qualified privilege (see the box on p51 for a summary of these defences). It is only if either of these defences apply in principle that a claimant will need to set about proving the publisher was motivated by malice.

A further distinction between the US and English systems is in relation to prior restraint. Whereas prior restraint is generally unavailable in the US in libel and/or privacy cases, the English courts have recognised (as they are required to do under the European Convention of Human Rights, implemented in England by way of the Human Rights Act 1998) that an individual has a right to a private life and that privacy cannot be adequately protected in certain cases without prior restraint to prevent publication of private or confidential information. English law acknowledges that confidentiality in this type of information is like an ice cube on a carpet: once it is lost, it is gone forever. Rightly, the English court will also carefully observe and uphold the right to freedom of expression. This right is also enshrined in law and is to be given equal prominence to the right to privacy. In these cases a court must carry out a balancing exercise between the competing interests.

One point to be aware of, however, is that the US courts will uphold contractual obligations of confidentiality. They will also fiercely protect copyright, which can be a useful right to assert if a mechanism for stopping the publication of confidential information, for example information contained in business plans, is needed.

Different approaches to the internet

Of no less importance in the digital age is an understanding of the ways in which existing laws are applied to current modes of communication in different jurisdictions. Under English law, information published on the internet is deemed to be published in England (and so subject to English law) if an internet user accesses it from this country, even if the publisher and servers are located overseas. Under English law each communication of a libel is a separate publication in respect of which an action may be brought. Therefore the English law does allow complaints over internet articles and blogs read in England or foreign newspapers sold here that have resulted in damage to a reputation. By contrast, in the US there is no comparable rule of ‘primary publication’. Instead, the law only allows one claim for the primary publication.

While internet publication (particularly on blogs) can present challenges to bringing a libel claim, the English law has adapted to meet these challenges. For example, an internet service provider may be compelled to disclose the identity of a person at a specified internet protocol (IP) address, thereby unmasking an anonymous blogger against whom action can be taken (as in The Author of A Blog v Times Newspapers Ltd [2009]).

The US courts appear to be adopting a similar approach in relation to online threats. In Liskula Cohen v Google, Inc (Blogger) [2009], Google was ordered to reveal the name of an anonymous blogger who had badmouthed a fashion model, Liskula Cohen. It was held that Cohen was entitled to know the identity of the person who maligned her sexual practices, hygiene and appearance on a blog called ‘Skanks in NYC’ to bring defamation proceedings against her. Google had refused to provide the person’s identity on the basis that to do so would constitute an infringement of its privacy policy. The English arm of Google would almost certainly have adopted a similar approach had the blog been an English one. The New York Supreme Court judge ordered Google to provide the blogger’s e-mail address enabling Cohen to identify who had been publishing the defamatory comments (which turned out to be someone Cohen knew from the New York party scene). Cohen is highly significant in a country that is widely regarded as being plaintiff-unfriendly in comparison to England.


Any business that values its reputation in the eyes of its stakeholders needs to ensure that it can do business in its marketplace without its reputation being unfairly tarnished, whether that market is local or global. A company that is seen as defending its reputation where damage has already been done will often achieve worldwide media pick up of an apology and statement in open court, which restores its reputation to its previous level, possibly even elevating it.

By Jenny Afia, associate, and Jon Oakley, associate, Schillings.



Fair comment

For the defence of fair comment to succeed, the defamatory statement must:

  1. be on a matter of public interest;
  2. be recognisable as comment;
  3. be based on facts that are true or privileged; and
  4. express a view which an honest person could hold.

Qualified privilege

For the defence of qualified privilege to succeed there must be:

  1. an interest or duty to publish the defamatory statement; and
  2. an interest or duty in receiving the defamatory statement.

The courts set out in Reynolds v Times Newspapers Ltd & ors [1999] ten criteria that the court should consider in determining whether the public was entitled to know what was published.

Bonnard v Perryman [1891] 2 Ch 269 (CA)

British Data Management Plc v Commercial Removals Plc [1996] EMLR 349

Campbell v Mirror Group Newspapers [2002] EWHC 499 (QB)

Liskula Cohen v Google, Inc (Blogger) [2009] Index No 100012/09

Cream Holdings Ltd & ors v Banerjee & ors [2004] UKHL 44

Godfrey v Demon Internet Ltd [1999] EWHC QB 240

McKennitt & ors v Ash & anor [2005] EWHC 3003

Nebraska Press Association v Stuart [1976] 427 US 539

New York Times v Sullivan [1964] 376 US 254

Reynolds v Times Newspapers Ltd & ors [1999] UKHL 45

The Author of A Blog v Times Newspapers Ltd [2009] EWHC 1358 (QB)