The Burden to Prove Libel: A Comparative Analysis of Traditional English and U.S. Defamation Laws and the Dawn of England's Modern Day

14 Pages Posted: 2 Nov 2012 Last revised: 11 Apr 2013

Date Written: June 1, 2012


When the United States of America declared its independence from the Kingdom of Great Britain on July 4, 1776, the fledgling country looked to distance itself from certain practices of the English Crown, particularly by rejecting a monarchical system. Problematically for this endeavor, though, the English common law tradition had been widely respected in the colonies. So, among the first legislative acts taken by many of the newly independent states was to adopt the already established, predictable, and structured body of English common law by way of a “reception statute,” which gave legal effect to the existing laws to the extent that they had not been rejected by the new government.The Treaty of Paris was signed on September 3, 1783, marking the end of the American Revolutionary War, with the United States of America officially and formally gaining its sovereignty and independence from Great Britain. Despite this separation, the legal traditions of the two countries remain very similar to this day. However, with respect to the common law of defamation, U.S. laws have evolved on a drastically different path.

In recent years, England’s centuries-old (and arguably antiquated) libel statute has caused significant hardship for those trying to exercise their right to free speech because of an increase in “libel tourism” — the practice of international forum shopping for defamation cases. Under English law, a libel defendant is guilty until proven innocent. This presumption has resulted in a disproportionate number of libel cases both from British citizens and “libel tourists” who sue their critics in London. Much of American law is derived from the English common law tradition. One primary subject upon which the laws of England and the United States markedly diverge is defamation and, most interestingly, the burden of proof in such cases. The [current] amendments to [England's] defamation statute include defenses for truth, for matters of public interest, for “honest opinion,” and for privilege. The reformers’ efforts, however, are lacking as they have rejected amending the most obvious and troublesome cause of libel tourism — the “burden of proof” that rests on the defendant in libel cases in England.

Keywords: Defamation, Libel, United Kingdom, common law, reputation, burden of proof, slander, plaintiff, defendant, Reynolds Defense

Suggested Citation

Samson, Elizabeth, The Burden to Prove Libel: A Comparative Analysis of Traditional English and U.S. Defamation Laws and the Dawn of England's Modern Day (June 1, 2012). Cardozo Journal of International and Comparative Law (JICL), Vol. 20, No. 3, 2012, Available at SSRN:
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