Defamation, Disinformation, SLAPPs and Democracy: How defamation law can both threaten and protect public discourse

The recent libel case brought by Dominion Voting systems against Fox News shows how defamation law can be used to put the record straight and hold to account those who have spread falsehoods that can damage democracy. However, there is now a lively debate as to whether the US Sullivan test makes it too easy for false and dangerous narratives concerning public figures to enter public discourse. Several other democracies have more limited defences, protecting responsible journalism on matters of legitimate public concern; however, critics argue that their lack of hard-edged protection ‘chills’ public interest journalism.

There is also growing recognition of the problem of SLAPPs (Strategic Lawsuits against Public Participation) – cases brought by wealthy individuals or corporations to stifle investigative journalism into their suspected wrongdoing. The recent prison sentence for libel handed to an Opposition leader in India is a stark reminder of how defamation law can be a potent anti-democratic tool.

The above issues will be discussed by speakers from India, South Africa, the UK and the US. Rather than using formal presentations, this roundtable will be a moderated conversation, with speakers engaging with each other and questions and comments from the floor.

Chair: Professor Catherine O'Regan

Kate O’Regan is the inaugural Director of the Bonavero Institute of Human Rights and a former judge of the South African Constitutional Court (1994–2009). In the mid-1980s she practised as a lawyer in Johannesburg in a variety of fields, but especially labour law and land law, representing many of the emerging trade unions and their members, as well as communities threatened with eviction under apartheid land laws.

In 1990, she joined the Faculty of Law at the University of Cape Town where she taught a range of courses including race, gender and the law, labour law, civil procedure and evidence. Since her fifteen-year term at the South African Constitutional Court ended in 2009, she has amongst other things served as an ad hoc judge of the Supreme Court of Namibia (2010–2016), Chairperson of the Khayelitsha Commission of Inquiry into allegations of police inefficiency and a breakdown in trust between the police and the community of Khayelitsha (2012–2014), and as a member of the boards or advisory bodies of many NGOs working in the fields of democracy, the rule of law, human rights and equality.

Speakers:

Professor Gavin Philipson

Gavin Phillipson has held a Chair in Law since January 2007 and moved from Durham University to the University of Bristol in 2019. He is also a qualified solicitor. His research and teaching interests cover aspects of UK constitutional law and practice, European, UK and comparative human law on free speech, public protest, privacy and anti-terrorism and the interface of these fields with constitutional and political theory.

He has published widely in top law journals in the UK, Australia, Canada and the US and is co-author of the leading text Media Freedom under the Human Rights Act (2006, OUP), with Fenwick. His work has been cited in judgments by the High Court, Court of Appeal, former House of Lords and Supreme Court in the UK, by the New Zealand Court of Appeal and by the Media Lawyer’s Association in their intervention to the European Court of Human Rights in the Hannover v Germany (no 2) (2012). His evidence on free speech issues has been cited by Parliament’s Joint Committee on Privacy and Injunctions and the Joint Committee on Human Rights; the Law Commission discussed his evidence on Abusive and Offensive Online Communications in its 2014 Report.

He was the academic member of the Ministry of Justice Working Group on Libel (2010), drafted parts of its report and his evidence on the Defamation Bill to the Joint Committee on Human Rights influenced the conclusions in the Committee’s Report (Dec 2012). He recently gave oral evidence to the House of Commons Justice Committee on the Bill of Rights Bill 2022.  

Professor Jacob Rowbottom

Jacob Rowbottom is a Fellow of University College, Oxford, and Professor of Law in the Faculty of Law, University of Oxford. He holds a BA in Jurisprudence from Oxford and an LLM from New York University School of Law.  He was previously a University Lecturer in Law and Fellow of King's College at the University of Cambridge. He is a qualified barrister and previously worked on the staff of an election campaign for the US Senate. His research interests include media law, freedom of expression and the legal regulation of the democratic process. He is the author of Democracy Distorted (2010) and Media Law.

Satyajit Sarna

Satyajit Sarna is a practising lawyer who has spent over a decade appearing before the courts in India in a wide range of matters. He has extensive first-hand experience defending against SLAPPs in courts in India, as part of a media law focused practice. He has defended publishers, writers, newspapers and journalists against large businesses, motivated government actions and powerful private organizations.

Sarna graduated from the National Law School of India University, Bangalore, India and holds an Advanced LLM in European and International Human Rights Law from Leiden University in the Netherlands. 

He is a 2022-23 Re:Constitution Fellow, focusing on researching SLAPPs and the freedom of expression, as part of a wider project on democracy and the rule of law in Europe. He has recently completed a study visit to the European Court of Human Rights at Strasbourg. He is also a published writer and poet.

Professor RonNell Andersen Jones

Professor RonNell Andersen Jones is the Teitelbaum Chair and University Distinguished Professor at the University of Utah and an Affiliated Fellow at Yale Law School’s Information Society Project. For the 2023-24 academic year, she is a Senior Visiting Research Fellow at the Knight First Amendment Institute at Columbia University. A former newspaper reporter and editor, she is a First Amendment scholar who teaches, researches and writes on legal issues affecting the press and on the intersection between the media and the courts.

Her scholarship addresses the constitutionally protected press function and the role of the press as a check on government. She is an elected member of the American Law Institute and an Advisor on its Restatement of the Law Third Torts: Defamation and Privacy. Her scholarly work has appeared in numerous books and journals, including Northwestern Law Review, Michigan Law Review, UCLA Law Review, Washington University Law Review, and the Harvard Law Review Forum. She is a frequent commentator on media-law matters for MSNBC, The New York Times, The Washington Post, National Public Radio, The Guardian, CNN, The Wall Street Journal, NBC News, and Politico, among others. 

Professor Andersen Jones clerked for the Honorable William A. Fletcher on the Ninth Circuit Court of Appeals and for Justice Sandra Day O’Connor on the United States Supreme Court. Prior to entering academia, she was an attorney in the Issues & Appeals section of Jones Day, where her work focused on Supreme Court litigation and included major constitutional cases.

Professor James Weinstein

James Weinstein is the Dan Cracchiolo Chair in Constitutional Law at the Sandra Day O’Connor College of Law, Arizona State University. He is Faculty Advisor to the First Amendment Clinic and Faculty Fellow, Center for Law, Science & Innovation at ASU. His academic interests are Constitutional Law, especially free speech, as well as jurisprudence and American legal history. He is co-editor with Ivan Hare of Extreme Speech and Democracy (Oxford University Press 2009, paperback edition 2010), and the author of Hate Speech, Pornography and the Radical Attack on Free Speech Doctrine (Westview Press 1999). He is the co-author with Ashutosh Bhagwat of Freedom of Expression and Democracy in The Oxford Handbook of Freedom of Speech (F. Schauer & A. Stone, eds, Oxford University Press, 2021).  

Weinstein has written numerous articles and book chapters on a variety of free speech topics, including: free speech theory, hate speech regulation and political legitimacy, lies in political campaigns, climate change disinformation, internet harassment, obscenity doctrine, institutional review boards, commercial speech, database protection, campaign finance regulation, the relationship between free speech and other constitutional rights, hate crimes, and campus speech. His current research interest is regulation of disinformation consistent with core democratic free speech principles. He has litigated several significant free speech cases, primarily on behalf of the American Civil Liberties Union. 

Weinstein received his bachelor’s degree, summa cum laude, from the University of Pennsylvania. He graduated cum laude from the University of Pennsylvania Law School, where he was a was the Research & Writing Editor of the Law Review. After law school, he served as a law clerk to Chief Judge James R. Browning of the 9th U.S. Circuit Court of Appeals, and then practiced civil litigation in Los Angeles for several years before joining the ASU law faculty in 1986.