Libel latest

Media and the law

Publish, perish, protest

Feb 25th 2010
From The Economist print edition

Bad news for dodgy journalism—and for libel tourists

LIBEL law in England is too expensive and restricts free speech. But journalistic dirty tricks are a disgrace and self-regulation of the media isn’t working properly. So the rules need lots of tweaks and a couple of big changes. Those are the conclusions of a much-awaited parliamentary committee report on the British press.

It makes uncomfortable reading for many. But the sharpest criticism was reserved for the News of the World, a tabloid that is Britain’s best-selling Sunday newspaper; its owner, Rupert Murdoch’s News International; and its practice of stealing messages from the voice mailboxes of prominent people, including members of the royal family. A reporter, Clive Goodman, was jailed for four months for the offence, later receiving a generous pay-off from his erstwhile employer for “unfair dismissal”.

The report says the number of phones hacked must have been far bigger than the handful admitted by the company, and calls it “inconceivable” that nobody else knew what was going on. It criticises the “collective amnesia” of the company’s witnesses and their “deliberate obfuscation” (some refused to give evidence; others said things that the MPs implied were untrue). But the report makes only indirect criticism of Andy Coulson, then the paper’s editor and now a close adviser to the Conservative leader, David Cameron. In response, News International rejected the allegations, accused the MPs of bias and said they had produced nothing new. Calls for a further inquiry are growing.

The report gives other journalistic misconduct a savaging too, especially the “abysmal” standards of reporting in the frenzy surrounding Kate and Gerry McCann, the parents of a British child who went missing in Portugal in 2007. (The McCanns later won hefty libel damages from newspapers that wrongly blamed them for abducting their own daughter.) The MPs also note that the McCanns were failed by the Press Complaints Commission, a self-regulatory body which is meant to deal with such conduct.

The committee’s original aim was to focus on media misbehaviour. But its investigation has ranged more widely. The report has plenty of comfort for more serious-minded journalists, as well as for the campaigning groups, scientists and others who worry about the chilling effect of libel law on press freedom. In English libel law (Scotland’s is different), the fact that the public has an interest in knowing about something offers only a limited defence against a charge of libel. (This is not unlike the rest of Europe, but it is shockingly different for Americans used to the First Amendment’s protection of free speech.) When sued, journalists usually have to prove that what they wrote was right, fair or at least conscientiously reported. That can be costly (even a preliminary defence can easily exceed £100,000). Foreigners may sue other foreigners, as long as they can show that their reputation was damaged in England.

Many lawyers and judges have dismissed media campaigns for changes in the law as self-interested. The committee rejects sweeping proposals for reform, such as statutory caps on the size of libel damages. But it does suggest that the Ministry of Justice, which is examining the libel law, make some important changes.

One is reversing the burden of proof for corporate claimants: if they want to sue for libel, they would have to show that the published material actually damaged their business. That could help people such as Simon Singh, a science writer facing a lawsuit from the chiropractors’ trade body for calling their treatments “bogus”. The MPs also want to discourage “libel tourism” by requiring a claimant who is not based in Britain to produce a very solid argument as to why the case needs to be brought there.

As for the cost of libel actions, which can be ruinous to all but the biggest defendants, the MPs have few specific ideas, though they appeal to lawyers’ sense of responsibility. That is about as realistic as urging tabloid journalists to act ethically.