Libel latest

Reforming libel law

A city named sue

Nov 12th 2009
From The Economist print edition

It is time to reform England’s archaic libel laws

ONE kind of foreigner loves English libel law. Anyone anywhere in the world who can prove that someone in England has bought, read or downloaded potentially defamatory material about them can start a court case. Merely initiating a defence generally costs the author or publisher at least £50,000 ($84,000). If the case ever comes to court, the costs are much higher. In 2007 Rinat Akhmetov, a Ukrainian tycoon, went to a London court to sue a Ukraine-based website about an article published only in Ukrainian—though read in Britain—and won. In a similar case a wealthy Saudi sued an American author for claims made in a book published in America which sold a handful of copies in Britain. He won too. Neither defendant was represented in court.

But foreigners who mind about free speech do not like English libel laws. Several American states have now passed laws entitling victims of “libel tourism” to counter-sue their persecutors for harassment. Big American news organisations have spent millions defending themselves against libel suits brought in London. As their budgets shrivel, so does their willingness to fork out. Some are threatening to stop selling in Britain, and to block access to their websites from British internet users. Their concern has pricked the House of Commons media committee to look at whether the law needs changing: it is due to report shortly.

Feebler than the sword

Libel law in England is not just expensive and wide-ranging (Scotland, with its own legal system, is a bit different); it also one of the most claimant-friendly systems in the world (Ireland comes a close second). That is because the law requires the defendant to prove that what he said is true, fair or legally privileged; it does not offer the strong free-speech defence that America’s first amendment provides. This hefty burden of proof, coupled with high costs, chills debate and hampers investigation into everything from consumer affairs to genocide.

Pressure groups dealing with issues such as war crimes are campaigning for reform. Scientists have got involved too. A prominent British science writer, Simon Singh, is facing a potentially ruinous libel action brought by a body representing chiropractors (who offer a form of alternative medicine with quasi-religious roots and maintain, among other things, that spine massage can improve the body’s “innate intelligence”). Mr Singh called chiropractice “bogus”. England’s senior libel judge, Mr Justice Eady, ruled that to defend this description, Mr Singh must prove that the chiropractors were not just deluded, but knowingly peddling false remedies. Mr Singh is appealing.

Like other media organisations, this newspaper has a vested interest in changing English libel law (it regularly spends large amounts of money defending itself, usually successfully, in libel actions). It is therefore important to note that there are arguments on both sides. Defamation can ruin lives; it is right that the law should offer redress to the wronged. Being a foreigner should not disqualify someone from defending a reputation in England; in some cases, English courts may be the only hope for the righteous.

But England’s libel law has become a playground for lawyers, sparring on behalf of the powerful. That needs to change. A good initial reform would be to rule that libel cases may be heard in English courts only when the material concerned has been deliberately published in England. That would stop the most absurd instances of libel tourism. Other sensible ideas under discussion include capping damages and strengthening the existing public-interest and fair-comment defences—in effect shifting the burden of proof.

Another sensible reform would be to allow cases to come to court only after an attempt to settle them amicably outside it—the current emphasis in family-law disputes too. That would offer a cheap and quick way of resolving those arguments that arose out of mistakes, where a prompt apology or a correction matters much more than damages. It would also make life easier for humble claimants with genuine grievances but without access to expensive lawyers. And it might make English law less appealing to those who use it to intimidate anyone investigating their guilty secrets.