Is the US the best bet for your defamation claim?

Parties subject to defamatory press are typically able to bring a claim in any jurisdiction where the defamatory information has been published and read, so long as they have also suffered damage to their reputation there.  High-profile individuals or companies with global reputations can therefore generally choose the jurisdiction in which to bring their defamation claim. 

Two of the most common jurisdiction in which claimants consider bringing claims are the United States and England.

Where to bring your claim – England or the U.S.?

In the past, we’ve generally advised clients that it is preferable to bring a defamation claim in England rather than in the US for two significant reasons:

(1) the burden of proof for a ‘truth defense’ favours the claimant under English law: In an English defamation claim, the defendant will generally have to prove that the defamatory information they published was true; conversely, in a U.S. defamation claim, the claimant will have the burden of proving that the defamatory material was untrue.

(2) public figures must show ‘actual malice’ under US law: First Amendment protections in the US require a public figure to demonstrate that the defamatory material was not only false but was also published with ‘actual malice’ rather than just negligence; there is no similar requirement under English law.

Is the US now a  better jurisdiction for defamation claims?

In light of a recent jury verdict in Alabama (Spears v. The New York Times Company, Case No. 7:23-cv-00692 (N.D. Ala.)), the US may be now be a more favourable forum for defamation claims notwithstanding the above.  An Alabama jury found that the New York Times had published a defamatory article about former high school athlete Kai Spears and awarded Spears USD 9.25 million in damages.   Although this figure was reduced on appeal as was expected, the final damages award is still USD 4.75 million. The significance of this decision is the level of damages awarded to the claimant. 

Successful defamation claims in the UK do not provide significant returns on damages for claimants.  Damages awarded on defamation claims in the UK are generally in the low five or six digits, typically capped out at GBP 300,000 and the largest ever damages award in connection with a defamation claim in the UK was for circa GBP 1 million. 

Defamation claims in the UK are decided by judges, who are constrained by the legal framework and case precedent limiting the damages they can award, no matter how grievous the defamation at issue.  Conversely, the US provides for jury trials in defamation claims, and the sympathies of a jury can clearly be moved to award damages many times more than those available in the UK.  

Clearly, if a party is willing to fight out a full defamation claim and can meet the heightened evidentiary burdens involved in a US claim, their best chance of recovering significant damages on their claim is in the US

The Kai Spears case signals a potential paradigm shift: while the US historically imposed a daunting burden of proof, this claim proves that the massive financial payoffs may now justify the legal gamble – making the US a high-stakes, high-reward casino of defamation law.

Yisrael Hiller is a Partner and head of Defamation and Reputation practice at Asserson. For more information on the topic or to get in contact, feel free to email him at Yisrael.Hiller@asserson.co.uk.