1984, the landmark case of New York Times v. Sullivan determined in cases concerning legal actions pertaining to libel taken by public officials, would not be accepted unless the plaintiff accepted the burden of proof – to demonstrate the insult was conveyed with “actual malice” (89, Tedford & Herbeck). Actual malice is proven by portraying the message was known to be false or the speaker “recklessly disregarded his or her obligation to discover and publish the truth” (89, Tedford & Herbeck). There are a number of issues to consider when resolving whether or not one committed negligence or actual malice. One such issue concerns the timing of the message. Was the message published on a deadline, or did the author have ample time to carefully research the story before publication. Those who do have time to commit to investigation carry a heavier burden of accuracy than do those who must publish in a short time (newspaper journalist, wire services etc.) The communicator must also be examined when determining actual malice. Is the communicator a public figure, or a public official, or professional? There is more protection for those with credentials than there is for less knowledgeable narrators.
In 1974 in the case of Gertz v. Welch the Courts distinguished between public and private persons. It was stated by the Court that private individuals are “more vulnerable to injury, and the state interest in protecting them is correspondingly greater… [and that] an individual who decides to seek governmental office must accept certain necessary consequences of that involvement…he runs the risk of closer public scrutiny” (96, Tedford & Herbeck).
In 2009, Canada made efforts to broaden their scope of freedom of speech through the “responsible communication” defense. Decided in Grant v. Torstar, free expression should have more protection when dealing with matters of public interest. To win on the defense one must prove the matter was based in the concern of the public. Second, the defendant was required to prove the publication was “responsible” – the author was meticulous in their research and verifications of the charge(s). The judge then decides upon the message’s public interest status. If public interest is shown, the jury must decipher if there is adequate evidence for a responsible communication defense. According to the Canadian Supreme Court, there are eight factors when determining whether the defamatory statement was made responsibly including: the seriousness of the allegation, the public importance of the matter, the urgency of the matter and the status and reliability of the source.
In examining the differences between Canada and America’s standards of libel protection the major distinctions fall with the burden of proof and the importance of the speaker. The US Court decided in New York Times v. Sullivan the plaintiff must prove fault. In Canada it is the speaker who must prove fault. There are no distinctions made in Canada between who the speaker is or who they are talking about that would alter the burden of proof. However in America, following Gertz v. Welch, the Court ruled public persons need more protection from defamation and therefore do not have to meet the strict standard of actual-malice. Yet, if the plaintiff is a public official, an all-purpose public figure or a limited public figure proving the actual-malice standard stands. Within a libel case in the US courts will lead directly into placing fault (establishing the title of the plaintiff). Canadian Courts will first define a libel case allowing the judge to determine whether the defamatory statement in question concerns the public interest or not. If the judge supports the case as an interest of the public a jury will then be responsible of interpreting the success of responsible communications defense. Over all, there is more protection granted within the United States for libelous assertions, especially made by private individuals.
I believe there are two prevalent philosophical theories that help justify the US Court’s outlook on freedom of expression in relation to libel. The first theory is best exemplified by John Milton. As stated by Tedford and Herbeck, “the philosophical reason for free speech is centered on the ancient struggle for freedom and the search for truth” (432, Tedford & Herbeck). Milton argued that instead of having the authorities impose means of suppression, society should be allowed to have “free and open clash of ideas in the belief that truth would win out” (432, Tedford & Herbeck). It is this central belief that seems most prevalent in America’s desire to make distinctions within plaintiffs. The recognition that private individuals are necessarily more vulnerable to defamation, and are therefore entitled to more means of protection demonstrates America’s belief that there is “likely some truth in all opinions” whether you are a public official or not (432, Tedford & Herbeck).
Another important philosophical model that grounds the United States’ outlook on libel is revealed in C. Edwin Baker’s liberty theory. Baker, similarly to John Milton, believes in the marketplace approach to free speech. “There is no such thing as objective, discoverable “truth,” that people are not always rationale, and that different people inevitably perceive the “truth” in different ways” (441, Tedford & Herbeck). Thus, to make a statement that is insulting to another may in fact be deemed truth by the speaker, but perceived as false to the slandered individual. As illustrated in the analysis and response posts from the first week of class, Americans place a significant value on the rights of the individual. Baker’s liberty theory depicts once again the worth of the individual – there may not be a universal “truth” however, there is a personal “truth.”
Libel laws have, especially outside of the US come into tension with an individual’s freedom of speech, directing the way toward censorship and oppression through silence. Fear of authors and publishers who have no means of protection is also present when examining freedom of speech with current libel laws. In an opinion article written by Olivia Judson in the New York Times, the British libel laws come under strict scrutiny of the fear they instill within published authors. Judson’s main example, Simon Singh, is being sued for libel by the British Chiropractic Association after he published an article in a newspaper arguing there was no justifiable evidence to prove the claims the BCA has made about the benefits of visiting a chiropractor. An educated scientist and published author, Singh is a credible source, yet there are a number of laws within Europe that permit restriction on freedom of speech as a means of protecting one’s reputation.
Although the intention of protecting one’s reputation is ideal, the Universal Declaration of Human Rights states in Article 19, “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” Yet, if one is afraid of an expensive lawsuit or, even worse, afraid of their life or socio-economic standing as a private individual – many will be quieted, whether or not they have a defensible argument.
It seems that based in a belief of individual rights, and that which promotes individual self-fulfillment, I believe I would rather fight in court under rules of “actual malice” than “responsible communication” in a case of libel. I believe looking at the basic philosophies of Baker and Milton, as well as examining the censorship that can exist in countries without basic individual protection against libel claims validate America’s current outlook on libel as evidenced in New York Times v. Sullivan and Gertz v. Welch.