Chapter 2 describes the divergence between 1790 and 1830 of British and American thought on privilege and truth and describes the emergence of the common-law offense of publishing an obscene libel. The legal questions central to Burdett v. Abbot (King’s Bench, 1811) about the extent to which the British common law courts could consider parliamentary law are discussed. In Massachusetts the Supreme Judicial Court in Coffin v. Coffin in 1808 had much less constitutional difficulty constraining legislative privilege. Much more challenging in Massachusetts was the role of evidence of truth in a libel trial, after it had come in the 1790s to be understood as an appropriate defense for a republican citizen, criticism being necessary to the functioning of a republic. Evidence of truth became admissible in an ever-growing set of circumstances in which the public needed to be informed.

Defamation can have a long-term effect – a ‘propensity to percolate through underground channels and contaminate hidden springs’ of C’s reputation (per Slipper v BBC1). It is a technically difficult tort, in which the defences available to D assume equal, if not greater, prominence in the judgments as do the elements of the cause of action itself. As a common law tort, it is an ‘ancient construct’ (per Lachaux v Independent Print Ltd2). The Defamation Act 2013, which took effect on 1 January 2014, overruled aspects of the common law, but preserved other aspects, adding to the complexity of the tort. Wherever the publication complained of began in 2013 and continues into 2014, the court is now likely to have to consider the position both at common law and under statute (per Donovan v Gibbons3).