Defamation, the right to freedom of expression and libel reform in the UK: A comparative analysis of legal regulation and jurisprudence in the UK, the United States of America, Germany, and the European Court of Human Rights

Free speech advocates had long argued that the UK’s common law on defamation was too claimant friendly and as such either potentially or actually chilled free speech. The phenomenon of libel tourism to the UK, illustrated by several high profile cases and arguably the result of the claimant friendly tilt of the law, served to prompt various actors including the United States Federal Government, the European Parliament and the UK Government itself, to call for reform. This culminated in Parliament’s ambitious attempt to fundamentally transform libel law in the UK: the Defamation Act, 2013 (‘the Act’). More than five years down the line, enough time has elapsed to start analysing the success of this attempt. Specifically, the question may be asked whether the Act succeeds in redressing the balance between the protection of reputation and freedom of speech, one of the stated aims of the legislative reform. To answer this question the Defamation Act 2013 itself, and the case law it has engendered may now be meaningfully examined. Next, a comparative analysis of other jurisdictions are useful. The logical starting point is the United States of America, where freedom of expression is strongly protected. From there the focus shifts to Germany: given its constitutional balancing freedom of speech and ‘personal honour’, it seems to occupy the middle ground between the perceived extremes exemplified in the USA on the one hand, and on the other the common law of defamation prior to its reform in England and Wales. Finally, for its highly developed balancing approach and its general reflection of European legal thinking, the European Court of Human Rights’ jurisprudence is examined.
Although much has been written about the disparate topics covered in this research, i.e. defamation and freedom of speech broadly speaking, a comparative analysis of the abovementioned jurisdictions, chosen for their differing stances, will assist in shedding light on the way in which the Defamation Act 2013 has so far been, and may be developed and interpreted in order to truly redress the balance in favour of freedom of expression in England and Wales.