Hacks v beaks
May 8th 2008
From The Economist print edition
Rich people and bad laws mean tough times for free speech
WHEN writing about litigious issues, big British newspapers favour phrases such as “he strenuously denies all wrong-doing” (possible translation: has no convincing explanation of his behaviour); “has failed to dispel speculation that...” (was scandalously involved in), as well as words like “controversial” (outrageous) and “murky” (corrupt).
Such expensively lawyered prose helps present a semblance of balance that usually protects editors against the severity of English libel law. A good lawyer might in any event have cautioned the Kyiv Post, an English-language newspaper in the Ukrainian capital, not to headline a column about municipal property deals with “Appalling Kyiv City Council Land Grab”. And he would certainly have demanded a thorough fact check before drawing a comparison with tactics used in other dealings by Rinat Akhmetov, one of the richest men in the country.
That would have been wise, for Mr Akhmetov reacted to errors in the article by suing the paper not in Ukraine but in London, using the city's most fearsome defamation lawyers, Schillings. The paper published an apology on February 21st.
To many people, the striking aspect of this was not its effect on Mr Akhmetov's standing but the fact that a Ukrainian tycoon was suing a Ukrainian paper (owned by an American) in London. Even the Kyiv Post's 100 subscribers in Britain give an English court the right to hear the case.
That followed a similar judgment last year against Rachel Ehrenfeld, a New York-based American author who has written about the support of some Saudis for Islamist terrorism. She was successfully sued in London by a Saudi for a book she had published in America that had sold only a handful of copies in Britain.
Even more striking was a second victory won by Mr Akhmetov earlier this year, against Obozrevatel (Observer), an internet news site that does not even publish in English. Like Ms Ehrenfeld, the defendants did not appear in court and judgment was entered against them in default. Damages will be set in a compensation hearing later this year. Schillings declined to comment, but a statement on its website reads: “By seeking redress in the courts of England, Mr Akhmetov will ensure that there will be a fair legal process.”
Perhaps. But for those used to the defence of free speech entrenched in America's First Amendment, English law seems anything but fair. It is not just that defending a libel action costs the equivalent of $200,000-plus up front, and much more if you lose. The plaintiff has to prove only that a statement was defamatory; it is up to the defendant to justify it, usually on grounds of truth or fairness.
The growing use of English courts by foreign litigants is arousing increasing concern among free-speech campaigners such as Chris Walker of Freedom House, an American lobby group. He terms it “manna from heaven for deeply illiberal and fantastically wealthy ex-Soviet oligarchs and Middle-Eastern oil tycoons. Everyone knows the potency of the English laws and everyone takes it into account, at an incalculable cost to free speech.”
Yet given the reputation of English courts, and long-standing rules in other countries about recognition of their judgments, it is hard to find a legal counter-attack. In response to the Ehrenfeld case, the state of New York last month passed the “Libel Terrorism Protection Act”, which explicitly protects residents' assets against foreign defamation judgments. But that is little comfort to other Americans and is likely to face legal challenges.
Some English judges have been worrying privately about the potential for abuse, and foreign litigants in future may face tougher scrutiny, particularly in actions against publishers with little presence in Britain. But litigants are also becoming more sophisticated. When a British tabloid, the News of the World, published a story about Max Mosley, a motor-racing administrator, he turned (unsuccessfully as it happened) to a court in France, which has strict privacy laws, to make the paper remove from its website a video which purported to show him engaged in sado-masochistic sex acts. Mark Stephens, a London lawyer, says “libel tourism” is giving way to “libel and privacy cruises”, where people are seeking the most favourable jurisdiction they can find.
Courts further afield may be even harsher and less predictable. Time magazine is appealing against a recent Indonesian Supreme Court judgment that ordered it to pay one trillion rupiah ($100m-plus) to the family of the late President Suharto, whom it accused of corruption in 1999. (This newspaper is one of a score of amici curiae petitioning for review of the verdict.) In English law, dead men can't sue. But (to be safe): Mr Suharto vehemently protested his innocence.
Friday, May 09, 2008