Historical Analysis of
the Four Jurisdictions
To develop an analytical framework, this chapter considers the historical development of defamation law in the United Kingdom, the United States, the ECHR and Australia. While the chapter examines the growth and complexity of the law of defamation in those jurisdictions, it seeks the common thread and divergent lines of protecting political speech. The historical study establishes the background to sanctions against defamation of public officials leading to First Amendment protections in the United States, libel reforms in the United Kingdom, the influence of the European Court on the domestic law of the United Kingdom, recent changes in Australian defamation law and consistency in the judicial interpretations of the regimes.
The United States and Australia share the background of common law of defamation with England. Social and political conditions combined to affect the common law of defamation. Until the eighteenth century, libel prosecutions brought by public officials against their critics were mostly called seditious or criminal libel. So the two terms were interchangeably used to describe parliamentary and judicial restrictions that burdened political discussion and criticism of public officials.1 One would say that a modern form of seditious libel involves government use of restrictions such as official secrecy and national security to silence public discussion of information the authorities consider classified.2
Defamation laws were created at a time when Great Britain was under a monarchical rule. Women were not enfranchised. Neither