Fault and Defamation Liability
This chapter explores the issue of fault in defamation law. Part B argues that even before defences such as that of responsible publication developed at common law, the question of whether the defendant acted with fault shaped, and continues to govern, key areas of defamation law. Part C discusses the current understanding of responsible publication in English, Australian, and South African law, and of actual malice in US law. In Part D, it is submitted that constitutionalizing the common law of defamation requires that, in cases of public speech concerning false statements of fact, liability should be based on negligence; this effects a more appropriate balance between freedom of expression and reputation than the actual malice standard. Part E shifts the focus to the liability of secondary publishers such as libraries, vendors, and internet service providers (ISPs). It argues that the current test of negligence that applies in these contexts is not adequate to balance freedom of speech on matters of public interest and reputation. Part F concludes the discussion.
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