Saper Law attorneys compare American and British Defamation suits
Brad Pitt and Angelina Jolie’s recent defamation lawsuit against a British tabloid caused a lot of our clients to ask: Why did Pitt-Jolie not sue for defamation in America? The short answer is that British courts currently provide a far more plaintiff-friendly forum for claims of defamation, or libel in its written form, than courts in the U.S. Here is a brief overview of UK vs USA defamation laws:
-What is the standard used in U.S. defamation claims?
The U.S. Supreme Court has recognized that a balance must be found between an individual’s right to protect his reputation from defamatory statements and the public’s right to freedom of speech. To hold a defendant liable for the publication of any false statement of fact would have a severe chilling effect on the reporting of news issues which are important to the public interest. Accordingly, when an allegedly defamatory statement is made about a member of public office or a public figure, such as a celebrity, it’s not enough to prove the falsity of the statement in dispute. U.S. courts require such public plaintiffs to show both falsity and actual malice. This actual malice standard requires the plaintiff to show by clear and convincing evidence that the defendant knew the material was false, or published the material with reckless disregard for the truth.
-What is the standard used in U.K. defamation claims?
British courts apply a far less stringent standard than U.S. courts for recovery in defamation claims. Under British law, the burden of proof rests with the defendant/publisher to prove the truth of the statements in dispute. The plaintiff only has to show that the statement harms his reputation, without having to show that any damage has actually been suffered. Defamatory statements are thus presumed to be false, unless the defendant can prove their truth.
-Why do plaintiffs prefer U.K. courts to bring defamation claims?
The U.K. defamation standard is favorable to plaintiffs for several reasons. The first is this presumption of innocence in favor of the plaintiff, which is almost the reverse of the approach taken by U.S. courts. Since newspapers and other publishers are often unable to clearly prove the truth of all the information they receive, or unwilling to reveal all source or informants, it’s very difficult for defendants to overcome this presumption. While more restrictive guidelines have been recent years, damage awards for British defamation claims are virtually unlimited and often result in very large damage awards, placing very strong financial pressures on the news media to limit free speech.
The jurisdictional requirements to enter U.K. courts are also very lenient, finding sufficient “publication” within England when a few subscribers or internet viewers may have been the only ones to read the statement. English courts may then hear and decide a case regardless of the claimant or defendant’s nationality, so long as the claimant can establish they have some reputation within the U.K. Therefore a U.S. defendant runs the risk that any English language publication may result in a British defamation judgment, which can then be enforced in the U.S. These factors result in a very plaintiff-friendly atmosphere, leading to the so-called “libel tourism” trend of U.S. celebrities seeking recovery in U.K. courts.
-Is freedom of expression not recognized in the U.K.?
While the First Amendment’s broad freedom of expression may not be recognized by U.K. courts, recent decisions illustrate an increasing deference for journalistic privilege. The public interest defense was recently expanded by Britain’s top panel of judges when they found that journalists should not be at risk for libel damages when they act responsibly and in the public interest. Following this decision, the burden should shift back to the plaintiff to show the news organization did not act fairly and responsibly in publishing information of public importance, even if the information contained relevant, yet defamatory allegations against prominent individuals. However, this defense seems to be limited to “serious journalism that engages the genuine public interest,” so it’s unlikely that celebrity gossip will be afforded this elevated level of protection.