I Book Review: Defamation and Freedom of Speech
| Published date | 01 March 2011 |
| Date | 01 March 2011 |
| DOI | 10.1177/016934411102900111 |
| Subject Matter | Part D: DocumentationI Book Review |
Netherlands Q uarterly of Human R ights, Vol. 29/1, 138–155, 2011.
138 © Netherla nds Institute of Human R ights (SIM), Printed in t he Netherlands.
PART D: DOCUMENTATION
I BOOK REVIEWS
Dario Milo, Defamation and Freed om of Speech, Ox ford University Press, Oxford,
2008, 338 p., ISBN: 978–0 –19–920493–21*
Dario M ilo’s book analyses the relationship between freedom of expression and the
right to reputation from a constit utional perspective. He examines comprehensively
the leading cases in England, South Africa, the United States and Australia. He includes
also some leading c ases of t he European C ourt of Huma n Rights (ECtHR). Milo is
very much i nuenced by the Amer ican case law in as far a s he argues i n favour of a
distinction between private and public speech when dealing wit h defamation law. e
author ex plicitly investigates the v alues underpinn ing the principles of defamation
law. A wealth of literature on the freedom of speech and the values underpinning that
freedom already exists. He argues ver y convincingly that a value-driven approach to
defamation law is requi red to balance the right of freedom of speech and the rig ht to
reputation. In separate chapters, the right to reputation, f reedom of expression and
freedom of the media, public speech, the presu mption of falsity, fault and defamation
liability and aspects of da mages and costs are dealt with ext ensively. Milo concludes
his study with suggestions for alternative remedies. His thematic approach coveri ng
systematically t he dierent legal systems deserves prais e.
In his study Milo is search ing for an optimum constitutional balance bet ween the
right to reputation and t he right to freedom of expression. His resea rch is addressing
the actual quest ion if London is really the libel capital of the world. e contrast wit h
the American case law on protecting the freedom of expression is great. US courts seem
to refuse to enforce defamation judgments emanating from England. e jurisdictions
of South Africa and Australia take up a position in between. ese countries prov ide
interesting exa mples of enquiry of how the common law of defamation ca n be
constitutionalise d. According to Milo there are two approaches. e rst approach
is one of ‘ad hoc balancing’. is approach is followed in South Africa, Engla nd and
in t he jurisprudence of the ECtHR. e second approach is called the ‘den itional’
balancing approach. e ca ses decided by the US Supreme Court provide a good
example of denitional balancing. is course favours free sp eech and reects t he
preferred position of freedom of speech a s protected by the First Amendment. At the
other side, the com mon law of defamation in England and Australia is char acterised
by the potent tri logy of fund amental principles: t he presumption of falsity, strict
liability, and the presumption of da mage.
* Jit Peters, Profess or in constitutiona l law, Department of pu blic law, University of Ams terdam, the
Netherland s.
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