Free Expression and Defamation
Introduction The debate surrounding the conflicting interests in protection of reputation and freedom of expression is obviously not one which is unique to the Internet, but it has certainly been reinvigorated and exacerbated by the potential for mass communication brought about by global computer networks. Accepting that a balance needs to be drawn between the right to speak freely and the right not to be falsely impugned, the focus of the debate is where to draw the line. For the purposes of this discussion, this also includes a consideration of whether the line should be drawn in the same place with respect to the Internet as with other media. Given the domination of the US in the development and use of the Internet and World Wide Web (WWW), this will be discussed with particular reference to the determination of that balance in the US, with its strong constitutional commitment to free speech expressed in the First Amendment,2 and also in the UK, often referred to as the libel capital3 of the world because of its apparent bias towards the alleged victims of defamation.4 Although freedom of expression is protected under both the First Amendment to the US Constitution and Article 10 of the European Convention on Human Rights, the latter is more specific about the need to balance this against other interests protected by law, and Article 10(2) makes explicit reference to the protection of reputation as a potential fetter on the right of free expression. This chapter will consider certain facets of the application of the law of defamation to publication on the Internet and WWW together with some of the salient aspects of the conflict and balance between free expression and defamation as demonstrated in the context of that medium of communication.