They do libel differently in the United States. The combination of the First Amendment and the hallowed case of Sullivan means that public figures have to show that the defendant was “malicious” in order to bring a claim in defamation. It has been reported that David Beckham has failed in such a claim. It was not enough that he contended that the allegations were false and were damaging to his reputation: he could not show that the publishers had been malicious in making those claims.
Is this defeat a good thing? The answer to that question goes to the heart of the current debate over English libel reform.
On the one hand, it is clear that it is currently too easy to threaten and even bring a libel claim: no damage has to be shown and once the claim is made, the costs and evidential burden instantly shift to the defendant. On the other hand, no one sensibly wants to have the casual smearing of either celebrities or non-celebrities by the tabloid press that would occur if there was no access to the courts to bring a libel case.
Getting the balance correct between the right to free expression and the ability to defend and vindicate a reputation is the key to successful libel reform.
In England, Beckham would not have to show malice unless the publishers contended that it was a fair comment or that they had some sort of qualified privilege. In respect of a sheer factual fabrication not checked with the claimant and which damaged a reputation such defences would not be any good: the defendant would be likely to lose a libel claim.
So is the US approach a bad one? Supporters of the First Amendment and Sullivan would say that public figures should not have the general right to inhibit adverse publications, unless they can show the defendant knew the fact to be false or did not care whether it was false or not. Any unfair reputational damage is thereby the cost one pays for having a society that values free expression. There is something to be said for that.
However, the notion that a person can freely say damaging and false things about another without any legal risk — unless there is malice — is not an attractive one. One task for libel reformers is to show that that would not be the unfortunate outcome of libel reform in England.
David Allen Green is legal correspondent of the New Statesman.