As leading common law jurisdictions grapple with the Internet’s impact on defamation law, comparative legal scholarship has revealed long-standing problems with its underlying theoretical justifications. Specifically, public libel doctrine is commonly supported by appeals to democratic theory in the abstract. Accountability concerns most relevant to adjudicating public libel cases are thus routinely overlooked. This article aims to diagnose the causes of these theoretical inaccuracies, describe their impact on public libel law, and translate their significance for law reform. Through exploring eighteenth-century libertarian thought, we highlight the foundational importance of accountability and the checking function rationale to democratic theory and governance. An analysis of competing democratic models demonstrates significant undertheorizing that poses several problems for contemporary political speech and public interest defenses. This article suggests that, before proceeding precipitously with Internet-inspired reforms, we might benefit from reflecting upon defamation law’s impact on all aspects of our democratic values.
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"Restoring Accountability in Freedom of Expression Theory: Public Libel Law and Radical Whig Ideology."
Osgoode Hall Law Journal