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Defamation and Freedom of Speech$
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Dario Milo

Print publication date: 2008

Print ISBN-13: 9780199204922

Published to Oxford Scholarship Online: January 2009

DOI: 10.1093/acprof:oso/9780199204922.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2021. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 22 October 2021

The Presumption of Falsity

The Presumption of Falsity

(p.156) V The Presumption of Falsity
Defamation and Freedom of Speech

Dario Milo

Oxford University Press

This chapter discusses the presumption of falsity, one of the core principles of the common law of defamation. Its effect is that, upon proof by the claimant that a defamatory statement of fact has been published referring to him, a presumption arises that the statement is false. The defendant bears the legal burden of showing that the statement is substantially true. Part B considers the extent to which courts have dealt with constitutional arguments concerning the presumption. Part C considers the constitutional arguments for and against the presumption of falsity. It argues that there is a sound foundation for the proposition that the claimant in a defamation action involving public speech should bear the burden of proving the falsity of the statements complained of. However, the same argument does not compel a change in the law in regard to private speech; in that context, it is reasonable for the law to require the defendant to prove truth. Part D concludes the analysis.

Keywords:   common law, defamation, defamatory statement, constitutional arguments

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