studies

This page highlights studies of defamation (online and offline), along with memoirs and accounts of particular cases.

It covers -

• introductions
• defamation in the age of the internet
• free speech and the chilling effect
• memoirs and biographies
• the Australian regime
• case studies
• before the telegraph

     introductions

For a cogent introduction see Matthew Collins' The Law of Defamation & the Internet (Oxford: Oxford Uni Press 2001), Andrew Kenyon's Defamation: Comparative Law and Practice (London: UCL Press 2006), Paul Mitchell's The Making of the Modern Law of Defamation (Oxford: Hart 2005) and The Right To Speak Ill: Defamation, Reputation & Free Speech (Durham: Carolina Academic Press 2006) by Russell Weaver, Andrew Kenyon, David Partlett & Clive Walker.

The Australian regime is explored in academic works such as Michael Gillooly's The Law of Defamation in Australia & New Zealand (Sydney: Federation Press 1998), Patrick George's Defamation Law In Australia (Cambridge: Cambridge Uni Press 2006), Australian Media Law (Sydney: LBC 2004) edited by Des Butler & Sharon Rodrick, and David Lindsay's 2000 study Liability for the Publication of Defamatory Material via the Internet.

Primers include Geoffrey Gibson's The Journalist's Companion to Australian Law (Carlton South: Melbourne Uni Press 1998) and Mark Pearson's The Journalist's Guide to Media Law (Sydney: Allen & Unwin).

For the US see in particular Protecting the Best Men: An Interpretive History of the Law of Libel (Chapel Hill: Uni of North Carolina Press 1988) by Norman Rosenberg, Libel & the First Amendment: Legal History and Practice in Print & Broadcasting (Lanham: Transaction 1987) by Richard Labunski, The Law of defamation in American political campaigns: The emerging protection of political commentary, 1800-1964 (Ann Arbor: UMI 1989) by Robert Anderson, Richard Posner's Law and Literature: A Misunderstood Relation (Cambridge: Harvard Uni Press 1997), Rodney Smolla's Suing the Press: Libel, the Media, and Power (New York: Oxford Uni Press 1986) and works on free speech highlighted here, such as Lawrence Friedman's A History of American Law in the 20th Century (New Haven: Yale Uni Press 2002) and Donald Gillmor's Power, Publicity, and the Abuse of Libel Law (New York: Oxford Uni Press 1992).

For the UK points of entry to the legal literature are provided by David Price & Korieh Duodu's Defamation: Law, Procedure and Practice (London: Sweet & Maxwell 2003), Patrick Milmo & W Rogers' Gatley on Libel and Slander (London: Sweet & Maxwell 1998), Power, Publicity & the Abuse of Libel Law (Oxford: Oxford Uni Press 1992) by Donald Gillmor, Carter-Ruck on Libel & Slander (London: Butterworths 1997) by Peter Carter-Ruck & Harvey Starte, David Hooper's Public scandal, odium, and contempt: An investigation of recent libel cases (London: Secker & Warburg 1984) and Wicked, Wicked Libels (London: Routledge 1972) edited by Michael Rubinstein and The Legal Concept of Art (Oxford: Hart 1998) by Paul Kearns.

For Canada see in particular Raymond Brown's The Law of Defamation in Canada (Ottawa: Carswell 1994). Insights about uses and abuses in Russia are provided in Article 19's 2003 The Price of Honour (PDF). A lucid view of early New Zealand developments is provided in Rosemary Tobin's 2005 The Defamation Action in Mid 19th Century New Zealand (PDF)

     defamation in the age of the internet

To supplement the Collins study we recommend Russell Weaver's cogent paper Defamation Law in Turmoil: The Challenges Presented by the Internet, Lilian Edwards 1997 paper Defamation & the Internet: Name Calling in Cyberspace and Marty Sutcliffe's paper Defamation on the Internet: Searching for Community, Identity & Statutory Solutions.

For us they are more convincing than Defamation Havens, a somewhat utopian analysis by Brian Martin of Australian cases, or Mike Godwin's brave 1996 article Libel Law: Let It Die and claims by Gilmore that the net cannot (and must not) be censored in any way. David Loundy's 1994 article E-Law 2.0: Computer Information Systems Law & System Operator Liability Revisited is of value for understanding debate prior to the dot-com bubble. Lyrissa Lidsky’s Silencing John Doe: Defamation & Discourse in Cyberspace article offers another view.

Mark Feldman's 2000 Internet Defamation: A Market-Based Analysis (PDF) highlights some philosophical questions.

The UK regime is explored in a 2002 discussion paper on Defamation and the Internet - A Preliminary Investigation by the Law Commission of England & Wales (PDF).

Practical issues are examined in the brief Internet Defamation: Pursuing Defendants in Cyberspace article by Patrick Clendenen & Joseph Lipchitz, the paper by Michael Blakeney & Fiona Macmillan on Regulating Speech On The Internet and Tim Arnold-Moore's 1994 paper Legal Pitfalls in Cyberspace: Defamation on Computer Networks.

     free speech and the chilling effect

For SLAPP in the US see in particular Penelope Canan & George Pring's SLAPPs: Getting Sued for Speaking Out (Philadelphia: Temple Uni Press 1996) and associated site. Ralph McCoy's online Freedom of the Press: An Annotated Bibliography is also of value. The online Big Chill is documented in the EFF and Berkman Center Chilling Effects site. Peter Amponsah's Libel Law, Political Criticism & Defamation of Public Figures: The United States, Europe & Australia (New York: LFB Scholarly 2004) is one comparative study.

A local view of SLAPP is provided in the 2004 paper by Chris Dent & Andrew Kenyon on Defamation Law's Chilling Effect: A Comparative Content Analysis of Australian and US Newspapers and in Slapping on the Writs: Defamation, Developers & Community Action (Sydney: UNSW Press 2003) by Brian Walters.

Australian historical and constitutional perspectives are provided in The outstanding study is Michael Chesterman's Freedom of Speech in Australian Law: A Delicate Plant (Aldershot: Ashgate 2000), Nicholas Aroney's Freedom of Speech in the Constitution (St Leonards: Centre for Independent Studies 1998), the 2002 note on Free Speech & the Constitution by Roy Jordan and Jim Spigelman's 2000 Foundations of the freedom of the press in Australia address. For a view from New Zealand see the NZ Law Commission's 2000 report Defaming Politicians: A Response to Lange v Atkinson.

The 2003 Communications Law Centre Third Person Singular? Instructing the Defamation Jury paper (PDF) and Rod Tiffen's Scandals, Media, Politics and Corruption in Contemporary Australia (Sydney: Uni of NSW Press 1999) are of interest in highlighting discrepancies in individual expectations regarding what the Australian community considers to be respectable. Action against Rivett and The News in the 1960 'Stuart Affair' is described in The Stuart Case (Melbourne: Black Inc 2002) by Ken Inglis.

For Turkey see Ayse Gül Altinay's The Myth of the Military-Nation: Militarism, Gender, and Education in Turkey (New York: Palgrave 2004)

     memoirs and biographies

For a UK practitioner's account see Memoirs of a libel lawyer (London: Weidenfeld & Nicolson 1990) by Peter Carter-Ruck - described by colleague as having "did for freedom of speech what the Boston Strangler did for door-to-door salesmen" - and Cases in Court (London: Heinemann 1949) by Patrick Hastings. The Liberace case is discussed in Iain Adamson's The Old Fox: A Life of Gilbert Beyfus QC (London: Frederick Muller 1963). Richard Ingrams of Private Eye was responsible for Goldenballs (London: Deutsch 1979)

Accounts by members of the US bar include Louis Nizer's My Life in Court (New York: Doubleday 1961). Among Australian memoirs see Walking On Water: A Life in the Law (Milsons Point: Random House 2003) by Chester Porter.

     Australia

As an introduction explore Patrick George's Defamation Law In Australia (Cambridge: Cambridge Uni Press 2006) and works noted above.

For law reform the major official studies are the 1979 Unfair Publication: Defamation & Privacy report from the Australian Law Reform Commission, 1996 ACT Community Law Reform Committee Defamation report, the 1995 Defamation report by the NSW Law Reform Commission and 2002 NSW Parliament briefing by Gareth Griffith on Defamation Law Reform Revisited. They provide useful background in considering the 2004 federal Outline of possible national defamation law discussion paper (PDF) and resultant uniform defamation law regime.

Other works of value include Michael Chesterman's 1995 'The Money or the Truth: Defamation Reform in Australia and the USA' in the UNSW Law Journal, Peter Applegarth's 1990' The Defamation Lottery' in the Australian Journalism Review and Goetz Boettner's Protection of the Honour of Deceased Persons: A Comparison Between the German and Australian Legal Situations (PDF).

     case studies

For Gutnick see Anna Beyer's 2004 article Defamation on the Internet: Joseph Gutnick v Dow Jones and Richard Garnett's 2004 Dow Jones and Company Inc. v Gutnick: An adequate response to transnational Internet defamation?’ paper. Lange v ABC is discussed in Sally Walker's article Lange v ABC: the High Court rethinks the "constitutionalisation" of defamation law.

The Rindos litigation is considered in the 1995 article Usenet News And The Law by Francis Auburn and 2000 Defamation Havens article by Brian Martin. Binoy Kampmark's 2001 Macquarie Bank v Berg: A Private International Law Critique article and Uta Kohl's 2000 Defamation on the Internet - A Duty Free Zone After All? Macquarie Bank Ltd v Berg consider the case of that name.

A discussion of the 2003 WA Supreme Court decision in litigation by Trevor Cullen appears in Online Defamation: A Case Study in Competing Rights (PDF) and Julie Dare's 2005 Cyberharassment & Online Defamation: A Default Form of Regulations? paper.

Among numerous studies of (or references to) action by Laurence Godfrey see Yaman Akdeniz's 1999 Case Analysis of Laurence Godfrey v Demon Internet Ltd study and the 1999 ABA note by Mark Stevens, Marietta Cauchi & Amber Melville-Brown on The Internet & Communications Law: Godfrey and the Demon.

Matthew Rimmer's 2004 article The Gossip we can trust: defamation law and non-fiction considers litigation over Bob Ellis' political memoir Goodbye Jerusalem. For the Hindmarsh Island case see Margaret Simons' The Meeting of the Waters: The Hindmarsh Island Affair (Sydney: Hodder Headline 2003) and the SA Supreme Court decision.

For the Browne & Fitzpatrick Case see Australian Constitutional Landmarks (Cambridge: Cambridge Uni Press 2003) edited by Hoong Phun Lee & George Winterton and Clem Lloyd's Parliament & the Press: The Federal Parliamentary Press Gallery 1901-1988 (Carlton: Melbourne Uni Press 1988). A sidelight is provided in 'Frank Browne and the Neo-Nazis' by Peter Henderson in 89 Labour History (2005). Burchett: Reporting the Other Side of the World, 1939-1983 (London: Quartet 1987) by Ben Kiernan and Jack Kane's Exploding the myths: the political memoirs of Jack Kane (Sydney: Angus & Robertson 1989) and John Murphy's Imagining the Fifties: Private Sentiment and Political Culture in Menzies' Australia (Sydney: UNSW Press 2000) offset the disingenuous Memoirs of a Rebel Journalist: The Autobiography of Wilfred Burchett (Sydney: UNSW Press 2005). Burchett's The People's Democracies: A Factual Survey (Melbourne: World Unity Publications 1951) is also of interest.

Maudling appears in Michael Gillard's A Little Pot of Money: The Story of Reginald Maudling and the Real Estate Fund of America (London: Deutsch 1974), Lewis Baston's Reggie: The Life of Reginald Maudling (Stroud: Sutton 2004), Nothing to declare: the political corruptions of John Poulson (London: John Calder 1980) and in John Poulson's memoir The Price (London: Michael Joseph 1981).

For the McLibel case see McLibel: Burger Culture on Trial (London: Macmillan 1997) by John Vidal - with assistance from the defendants - and the McSpotlight advocacy site. McLibel: A Case Study in English Defamation Law (PDF) by Marlene Nicholson is more nuanced.

A point of entry for information about 'McGunns' is here. Writing about corporate reputation management, such as Corporate Image Management - A Marketing Discipline for the 21st Century (London: Butterworth 1998) by Steven Howard and Communicating When Your Company Is Under Siege: Surviving Public Crisis (New York: Free Press 1986) by Marion Pinsdorf, is featured here. The litigation against Thai democracy activist Supinya Klangnarong features here.

The unlovely David Irving appears in Lying About Hitler: History, the Holocaust, and the David Irving Trial (New York: Basic Books 2000) by Richard Evans, The Holocaust on Trial (New York: Norton 2000) by David Guttenplan and History on Trial: My Day in Court with David Irving (New York: Ecco 2005) by Deborah Lipstadt. The text of the judgement by Justice Charles Gray is available online and in The Irving Judgement: Mr David Irving v Penguin Books & Professor Deborah Lipstadt (London: Penguin 2000). Robert Kahn's Holocaust Denial and the Law: A Comparative Study (London: Palgrave 2005), Denying History: Who Says the Holocaust Never Happened and Why Do They Say it? (Berkeley: Uni of California Press 2000) by Michael Shermer & Alex Grobman and documentation in The Case for Auschwitz: Evidence from the Irving Trial (Bloomington: Indiana Uni Press 2002) by Robert Jan Van Pelt are also pertinent

For Aldington see Nikolai Tolstoy's Victims of Yalta (London: Hodder & Stoughton 1977), The Minister & the Massacres (London: Hutchinson 1986) and The Cost of a Reputation - Aldington versus Tolstoy: the causes, course & consequences of the notorious libel case (Edinburgh: Canongate 1997) by Ian Mitchell.

Flynt and Falwell appear in Jerry Falwell v Larry Flynt: The First Amendment on Trial (New York: St Martins 1988) by Rodney Smolla.

For Sullivan in the US see in particular Anthony Lewis' Make No Law: The Sullivan Case and the First Amendment (New York: Random House 1991), supplemented by Actual Malice: Twenty-Five Years After Times v. Sullivan (New York: Praeger 1989) by W Wat Hopkins.

Westmoreland v CBS is examined in Renata Adler's Reckless Disregard: Westmoreland v CBS et al; Sharon v Time (New York: Vintage 1988), Burton Benjamin's Fair Play: CBS, General Westmoreland and How a Television Documentary Went Wrong (New York: Harper & Row 1988) and Vietnam on Trial: Westmoreland vs CBS (New York: Atheneum 1987) by Bob Brewin & Sydney Shaw. A perspective is offered in The Color of Truth: McGeorge Bundy and William Bundy - Brothers in Arms (New York: Simon & Schuster 1999) by Kai Bird.

For Sharon see Uri Dan's Blood libel: The inside story of General Ariel Sharon's history-making suit against Time magazine (New York: Simon & Schuster 1987)

McGinnis appears in The Journalist & the Murderer (London: Bloomsbury 1991) by Janet Malcolm. For McCarthy and Hellman see Carol Geldeman's Mary McCarthy: A Life (New York: St Martin's Press 1988), Carol Brightman's Writing Dangerously: Mary McCarthy and Her World (New York: Potter 1992), Frances Kiernan's Seeing Mary Plain: A Life of Mary McCarthy (New York: Norton 2000), Carl Rollyson's Lillian Hellman: Her Legend and Her Legacy (New York: St. Martins 1988), Joan Mellen's Hellman & Hammett: The Legendary Passion of Lillian Hellman and Dashiell Hammett (New York: HarperCollins 1996) and the less incisive Lillian Hellman: A Life With Foxes and Scoundrels (New York: Counterpoint 2005) by Deborah Martinson.

The Safra case is the subject of Bryan Burroughs' Vendetta: American Express & the smearing of Edmond Safra (London: Harper Collins 1992).

For Bangoura see Robert Spellman's 2004 The Conundrum of Jurisdiction Over Transnational Libel Suits (PDF).

Works on more distant cases include Hatred, Ridicule or Contempt, A Book of Libel Cases (Harmondsworth: Penguin 1964) by Dean Joseph,Auschwitz in England, A Record of a Libel Action (London: McGibbon & Kee 1965) by Mavis Hill & Norman Williams and Their Good Names (London: Hamish Hamilton 1970) by Montgomery Hyde.

Ruskin's attack on the falling rocket is discussed in A Pot of Paint: Aesthetics on Trial in 'Whistler v Ruskin' (Washington: Smithsonian Institution Press 1992) by Linda Merrill.

For Wilde and Pemberton-Billing see Richard Ellmann's Oscar Wilde (London: Cape 1988), Philip Hoare's Wilde's Last Stand: Decadence, Conspiracy and the First World War (New York: Arcade 1997), Merlin Holland's The Real Trial of Oscar Wilde: The First Uncensored Transcript of the Trial of Oscar Wilde vs. John Douglas, Marquess of Queensberry, 1895 (London: Fourth Estate 2003) and Salome's Last Veil: The Libel Case of the Century (London: Granada 1977) by Michael Kettle.

The Eulenberg Affair is discussed in Isabel Hull's The Entourage of Kaiser Wilhelm II 1888-1918 (Cambridge: Cambridge Uni Press 1982) and Lamar Cecil's Emperor and Exile: Wilhelm II, 1900-1941 (Chapel Hill: Uni of North Carolina Press 1996).

A taste of Greene's criticism is found in The Pleasure-Dome: the Collected Film Criticism 1935-40 (London: Secker & Warburg 1972), with an intelligent discussion of the Wee Willie Winkie case appearing in Norman Sherry's The Life of Graham Greene, Vol 1: 1904-1939 (London: Cape 1989). For the 'Rasputin Case' see John Kobler's Damned in Paradise The Life of John Barrymore (New York: Atheneum 1972), Ted Berkman's gushy The Lady & the Law: The Remarkable Story of Fanny Holtzman (Boston: Little Brown 1976) and Felix Youssoupoff's Lost Splendor - The Amazing Memoirs of the Man Who Killed Rasputin (New York: Turtle Point Press 2003).

For Hardy and Wren see Frank Hardy's very problematical Hard Way: the story behind Power Without Glory (Hawthorn: Gold Star 1960), Paul Adams' Frank Hardy The Stranger From Melbourne: Frank Hardy - A Literary Biography, 1944-1975 (Nedlands: UWA Press 1999), Pauline Armstrong's Frank Hardy & the making of Power Without Glory (Carlton South: Melbourne Uni Press 2000) and James Griffin's John Wren: a Life Reconsidered, (Carlton North: Scribe 2004).

For Dorothy Hewett see In defence of my family: the inside story of the Hewett libel cases (Peppermint Grove: Peppy Gully Press 1987), an account by aggrieved ex-spouse Lloyd Davies.

A view of the 1982 Seidler case is provided in the 2004 Censorship and the Political Cartoonist (PDF) by Haydon Manning & Robert Phiddian.

     before the telegraph

Works on honour, reputation and defamation in the pre-industrial era and steam age include Stephen Waddams' Sexual Slander in Nineteenth-Century England: Defamation in the Ecclesiastical Courts, 1815-1855 (Toronto: Uni of Toronto Press 2000), Martin Ingram's Church Courts, Sex & Marriage in England, 1570-1640 (Cambridge: Cambridge Uni Press 1987), Before the Bawdy Court: Selections from Church Court & Other Records Relating to the Correction of Moral Offences In England, Scotland & New England, 1300-1800 (London: Elek 1972) edited by Paul Hair, The Culture of Slander in Early Modern England (Cambridge: Cambridge Uni Press 1997) by M. Lindsay Kaplan and Anna Clark's Scandal: The Sexual Politics of the British Constitution (Princeton: Princeton Uni Press 2003). For across the Channel see Helen Solterer's The Master & Minerva: Disputing Women in French Medieval Culture (Berkeley: Uni of California Press 1995) and Simon Burrows' Blackmail, Scandal & Revolution: London's French Libellistes 1758-1792 (Manchester: Manchester Uni Press 2007).

Context is provided by Governing Morals: A Social History of Moral Regulation (Cambridge: Cambridge Uni Press 1999) by Alan Hunt and William Miller's Eye for an Eye (Cambridge: Cambridge Uni Press 2006), the latter offering a perspective on notions on valuing honour. For a more recent perspective on honour see Lisa Pruitt's 2004 Her Own Good Name: Two Centuries of Talk About Chastity (PDF).





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