Does the Law of Defamation Strike a Fair Balance Between the Essay

Does the Law of Defamation Strike a Fair Balance Between the Protection of Reputation and Freedom of Expression - Essay Example The public naturally looks to the media to provide this information. The law of defamation has a greater impact than any other area of the law, on what and how this information is reported to the public. The law of defamation holds the publisher of information responsible for the accuracy of the information revealed. In the absence of the law of defamation, reputations would be harmed without remedies. However, the law of defamation must be framed so as to allow freedom of expression so that information released to the public has substance.2 It is therefore necessary that fair balance is struck between the protection of reputations and freedom of expression to allow for the free and fair exchange of information necessary in a democratic environment. In the UK, freedom of expression is a fundamental human right and although reputation is not a specific fundamental human right, it is connected to the right to privacy which is a fundamental human right.3 The right to privacy and freedom of expression are both provided for by the European Convention on Human Rights (ECHR) and are applicable in the UK by virtue of the Human Rights Act 1988.4 There are tensions between the right to privacy and freedom of expression. ... formation in England and Wales and identifies the extent to which the law of defamation attempts to strike a fair balance between the protection of reputation and freedom of expression. It is argued that while there is a recognized need to strike a fair balance between protection of reputational interests and freedom of expression, the historical preference for protection the reputation prevails although in more recent times there appears to be a shift away from this preference. In this regard, this research study is divided into three main parts. The first part of this paper presents a review of literature in which previous studies on the tensions between the law of defamation emphasizing protection of the reputation and freedom of expression are presented. The second part of this paper will analyse the relevant cases. The third part of his paper will present an analysis of the material discussed in the previous two parts of the paper. II. A Review of Literature In a study conducted by Smet of the ECtHR’s decisions on cases involving protection of the reputation and freedom of expression, it was revealed that momentum has been building in the ECtHR jurisprudence recognizing a conflict between the two rights. In order to resolve this tension the ECtHR has used what has been referred to by Smet as an â€Å"impact criterion†.6 The impact criterion refers to an approach in which the court considers: ...the extent to which both rights would be impaired by allowing the opposing right to take preference. 7 With respect to defamation cases, the ECtHR is particularly appreciative of the important role that the press plays as a conduit for public information at its â€Å"contribution to ensuring the proper functioning of a democracy†.