A Crisis of Democratic Accountability: Public Libel Law and the Checking Function of the Press

This book undertakes a comparative study of the public interest and political speech defences in defamation law, particularly from the perspective of the misuse of democratic free expression justifications. Specifically, it argues that the law and legal approaches taken by leading courts and legislatures in the UK, Australia, New Zealand, Canada, and the United States – five common law comparators – are undertheorised, lack adequate criteria for determining the correct form of the defence, and would benefit from a more precise understanding of ‘democracy’, ‘accountability’, and ‘representation’. The book will be of great interest to scholars of free speech, defamation and public law.

Table of Contents:

Part A: Introduction to the Problem of Public Libel Law
Overview of Part A
1. Balancing Freedom of Expression and Reputation in Constitutional Context
I. Defamation’s Moving Target: Balancing Free Expression and Reputation
II. Overview of Public Libel Doctrine
III. Continuum of Doctrinal Solutions
IV. Public Libel Law’s Theory-Doctrine Rift
V. Chapter Conclusion
2. Methodological Barriers to Democratic Theorising
I. Overview
II. Methodological Barrier I
III. Democratic Theorising in Public Libel Jurisprudence
IV. Methodological Barrier II
V. Moving Forward

Part B: Undertheorising Democratic Accountability: Comparative Law Analysis of Public Libel Doctrine
Overview of Part B
3. Indeterminate Balancing in Public Libel Doctrine: Generic Rules and ‘Implied Rights’
I. United States
II. Australia
III. Chapter Conclusion
4. Overlooking the Checking Function of the Press
I. Overview
II. Strasbourg Jurisprudence
III. United Kingdom
IV. New Zealand
V. Chapter Conclusion
5. Conflating Meiklejohnian Theory and the Checking Function of the Press
I. Overview
II. United Kingdom
III. Canada
IV. Chapter Conclusion

Part C: Reasserting Democratic Accountability
Overview of Part C
6. Distinguishing the Checking Function from Meiklejohnian Theory: Lessons from Public Accountability and Neo-Republicanism
I. Confronting a Conceptual Stalemate: ‘Representation’ and ‘Accountability’
II. Public Accountability Scholarship
III. Neo-Republicanism: A Return to Institutional Design
IV. Chapter Conclusion
7. A Revised Analytical Framework: Accountability Dysfunctions, Public Libel Doctrine, and the Institutional Press
I. Overview
II. Accountability Dysfunctions
III. The Institutional Press as a Horizontal Accountability Mechanism
IV. Public Libel Doctrine: Balancing Reputation and Freedom of Expression in Contemporary Democracies
V. Chapter Conclusion

Part D: Restoring Democratic Accountability
Overview of Part D
8. Assessing Britain’s Political Accountability Profile
I. Selecting a Law Reform Candidate
II. Britain’s Primary Accountability Mechanisms
III. Britain’s Secondary Accountability Mechanisms
IV. Chapter Conclusion
9. Reinstating the Checking Function in Britain’s Constitutional Context
I. Law Reform Recommendations
II. Discussion
III. Chapter Conclusion
Conclusion—Prospective Challenges to Public Libel Law Reform