A Clear Case of Tort Gone Wrong: A View From the Other Side of the Pond

Taking a cue from Weir’s observation that law is shaped by cultural preoccupations, perhaps we may profitably examine the march of negligence, at least in defamation actions, in terms of English and American social differences.  Social contrasts between the libel laws of the two jurisdictions are stark.  Committed to free speech protections of the first amendment, an American reader may be surprised that English practice has made a plaintiff’s showing of a defendant’s negligence adequate for their  recovery for libel.  An English lawyer’s dilution of the freedom of speech seems alien to the American counterpart:  “One person’s freedom to speak is another person’s freedom to be defamed.” According to a recent American article, “[P]ublishers may be held liable [in English courts] even for statements that they honestly believe to be true."  Hence, a libel plaintiff has regularly enjoyed a “significantly higher probability of prevailing in the United Kingdom than in the United States.” Reacting to English policy for libel plaintiffs, some U.S. courts have refused to enforce English judgments as violations of public policy.  Plaintiff-friendly English defamation law makes insuring against libel losses a tricky business.