![handle is hein.journals/tulr87 and id is 977 raw text is: A Clear Case of Tort Gone Wrong:
A View from the Other Side of the Pond
Shael Herman*
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.2 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.!
When courts can no longer tame the doctrinal jungle and social
interests need to be rebalanced, the legislature may intervene. In the
United Kingdom, Parliament is poised to enact general regulations of a
publisher's liability for defamation.! According to Elspeth Reid, the act
* C 2013 Shael Herman. Professor Emeritus, Tulane University Law School;
Visiting Scholar, Wolfson College, Cambridge, 1988; Trustee, Academy of Private Lawyers,
Milan, Italy. J.D., M.A., B.A., Tulane University.
1. Daniel C. Taylor, Libel Tourism: Protecting Authors and Preserving CoMity, 99
GEO. L.J. 189, 196 (2010) (quoting Jennifer Howard, News Analysis: US. Libimans,
Authors, and Publishers Weigh the Chilling Effects of 'Libel Tounsm,' CHRON. HIGHER
EDUC. (June 25, 2008), http://chronicle.com/article/News-Analysis-Weighing-the/932).
2. Id. at 196-97.
3. Id at 197.
4. Id at 202.
5. See Defamation Bill, 2012-13, H.C. Bill [5], available at http://wwwpublica
tions.parliament.uk/pa/bills/cbill/2012-2013/0005/13005.pdf.
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