The Regulation of Defamation in Tort and Criminal Law

: A Comparative Study of England and France

Abstract

Defamation is a complex topic, historically lying at the crossroads of tort and
criminal law. In the current state of the law, various common law jurisdictions
(including England) have abolished criminal defamation. By contrast, civil law
jurisdictions approach defamation first and foremost as a criminal offence,
although in many countries (including France), the claimant’s right is also civilly
actionable. From a comparative perspective, this distinction supports a generally
held view that the national particularisms of defamation laws reflect very
different approaches to the protection of reputation. This thesis considers and
challenges this view by critically examining the extent to which the nature of the
regulation, tortious or criminal, influences the substantive content of the rules on
defamation in England and France. It argues that the current regulatory features
are the result of a haphazard historical development, rather than of a conscious
choice. Thus, the distinction between tortious and criminal liability in England
and France does not necessarily epitomise fundamentally irreconcilable
conceptions of reputation. This suggests that the English and the French laws of
defamation are comparable despite their different regulatory features. This is
confirmed by studying key features of the law of defamation: standards of
liability, the defence of truth and remedial aspects of the wrong. At first sight,
their apparent differences seem to be justifiable on the basis of each system’s
disparate regulatory features. Upon closer analysis of each of these features
however, elements of commonality emerge. The English and French rules on
fault are comparable and are underlined by a shared concern to promote media
accountability, their treatment of truth is becoming analogous, and the remedial
aspects of defamation are functionally comparable. The thesis concludes that
despite substantive differences owing to the regulatory features of each system,
England and France adopt a shared conceptual approach to the wrong of
defamation.

Date of Award	2016
Original language	English
Awarding Institution	King's College London
Supervisor	Tanya Aplin (Supervisor) & Sandy Steel (Supervisor)