Centre for Communication Governance at NLU delhi
Theory on Defamation

Article 19, Defining Defamation: Principles on Freedom of Expression and Protection of Reputation, International Standards Series, July 2000 [Open Access]

These Principles have been formulated by Article 19, based on international laws and standards, in order to set out an appropriate balance between the human right to freedom of expression and the need to protect individual reputations. In particular, they set out standards of respect for freedom of expression to which legal provisions designed to protect reputations should, at a minimum, conform.

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Van Vechten Veeder, The History and Theory of the Law of Defamation, 3(8) Columbia Law Review 546 (1903) [Restricted Access]

Veeder traces the history of the law of defamation, before going on to decry the “grotesque anomalies” of defamation law, in charting the development of libel and slander from the time of the ecclesiastical courts. In locating the modern law of defamation, he finds that compensating harm to reputation was not the original purpose of the law of defamation – slander actions were proscribed by ecclesiastical courts to protect the soul of the slanderer, while libel actions were created primarily as a means of protecting the government from the power of the printing press.

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Stanley Ingber, Defamation: A Conflict between Reason and Decency, 65 Virginia Law Review 785 [Restricted Access]

This article argues that the protection of Freedom of Speech and Freedom of Press is a reason interest that conflicts with the decency interests protected by the law of defamation. It demonstrates that the Courts’ present approach to the problem has succeeded in fulfilling neither of the interests, and presents a new model for handling the various interests involved in defamation.

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Alfred Hill, Defamation and Privacy under the First Amendment, 76(8) Columbia Law Review 1205 (1976) [Restricted Access]

This article explores the interaction between defamation law and the right to privacy, and discusses the development of case law in this regard. However, it notes that case law has only addressed a narrow field regarding protection of media defendants, and proceeds to discuss defamation issues not addressed by the Court, inter alia, media activities other than the presentation of “news” and comment thereon; defamatory opinion generally; aspects of fault not yet considered by the Court; and defamation by individuals not performing a media function, particularly when the persons defamed are not public figures.

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Joel D. Eaton, The American Law of Defamation through Gertz v. Robert Welch and Beyond: An Analytical Primer, 61(7) Virginia Law Review 1349 (1975) [Restricted Access]

This Article analyses the development of the American law on Defamation, and the purposes served by such law, both before and after New York Times v Sullivan. It discusses the varied treatment given to different classes of plaintiffs such as public figures and private individuals, and also specifically analyses Gertz v Robert Welch.

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W. Page Keeton, Defamation and Freedom of the Press, 54 Texas Law Review 1221 (1975-1976) [Restricted Access]

This article compares the English and American defamation principles, including the various privileges to defame and defences to liability. The author suggests that the law of defamation can be simplified without upsetting the proper balance between protecting personal reputations and encouraging the free interchange of ideas. To recover for defamatory falsehoods, Keeton argues, all plaintiffs should have to demonstrate that defendants knew of the falsity of their statements or had no reasonable basis for believing the statements to be true.

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Bonnie Docherty, Defamation Law: Positive Jurisprudence, 13 Harvard Human Rights Journal 263 (2000) [Restricted Access]

This article argues that in recent years, national and international courts have developed a body of case law that seeks to reduce defamation’s infringement on freedom of expression. The decisions of various Courts exhibit noteworthy trends in legal change and frequently refer to each other as persuasive precedent. This Article presents an overview of such positive jurisprudence and focuses on decisions from international, Commonwealth, and United States courts.

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Robert C. Post, The Social Foundations of Defamation Law: Reputation and the Constitution, Yale Law School Faculty Scholarship Series (1986) [Open Access]

This article explores three distinct concepts of reputation that the common law of defamation has at various times in its history attempted to protect: reputation as property, as honour, and as dignity. The Article concludes that reputation is not a single idea, but is instead a melange of several different concepts. Each concept demands its own constitutional analysis. The author believes that distinguishing between these concepts of reputation is essential is ensuring that defamation law is constitutionally applied.

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David S. Ardia, Reputation in a Networked World: Revisiting the Social Foundations of Defamation Law, 45 Harvard Civil Rights-Civil Liberties Law Review 261 (2010) [Open Access]

This article argues that it is time to rethink defamation law in order to ensure it suits modern times. It argues that defamation law suffers from significant doctrinal and practical limitations that preclude it from achieving its goal of protecting reputation. Cognizant of these limitations, it offers some guidelines for reforming defamation law, suggesting that existing monetary remedies should be deemphasized while alternative approaches that seek to correct inaccurate information and provide opportunities for contextualization should be emphasized.

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