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.

extradition

Extradition

Succumb and deliver
Oct 1st 2009
From The Economist print edition


Extradition laws are getting tougher and tighter. But they remain messy, even if your name is not Polanski



IT IS a fair bet that if a humble Polish immigrant called, say, Pawel Romanski had skipped bail after pleading guilty to raping a 13-year-old in Los Angeles 30 years ago, fleeing to France would have done him little good, and his fate, however unfair, would never have become a cause célèbre. Most of the time, international extradition is a boring business involving a lot of dull form-filling, after which wrongdoers are taken back to face justice.

But add a dose of celebrity, a dash of politics, and sharply clashing cultural attitudes, and things change. Swiss police arrested the film director Roman Polanski (pictured above) on September 26th, fulfilling an American arrest warrant issued in 1978. In that year Mr Polanski fled the country to avoid sentencing by a Los Angeles judge. Arrested for rape, he had agreed to a plea bargain in which he admitted unlawful sexual intercourse with a 13-year-old. A French-born Pole, Mr Polanski has dual citizenship, thus benefiting from France’s restrictive extradition laws. He has since travelled in Europe, but never returned to the United States.

His arrest has sparked a diplomatic rumpus. The French and Polish foreign ministers jointly asked America for clemency—though their governments later distanced themselves from these calls. Film-industry luminaries such as Woody Allen, Pedro Almodóvar and Martin Scorsese are supporting a petition calling for his immediate release. For Mr Polanski’s fans, the extradition decision is vindictive and sinister. His whereabouts were no secret: he was invited to Switzerland to receive an award at the Zurich film festival. Some suspect that the wily Swiss set a trap, hoping to placate America, which has been cracking down hard on Swiss tax shelters. Certainly Mr Polanski had travelled to the country many times in the past, without incident. Why had the American court only now sought to enforce the warrant?

Others, especially in America, see the issue differently. By jumping bail, Mr Polanski cocked a snook at American justice. The passage of time if anything aggravates that. So did his attempts (without showing up in person) to have a Los Angeles court dismiss the case late last year, and his successful lawsuit in London against an American magazine. (He gave evidence by videolink). The witness statement given by Mr Polanski’s victim still makes harrowing reading (though she has long since settled with him in a civil-law suit, and has supported his efforts to close the case). Justice would be ill-served if fame mitigated any crime, especially one like rape.

Mr Polanski’s case is one of several high-profile and highly politicised extraditions now in court. America is also trying to extradite Viktor Bout, a Russian arms dealer, from Thailand. Russia is trying to extradite Yevgeny Chichvarkin, a mobile-phone tycoon, from Britain on charges of extortion and kidnapping. He says his life is in danger if he is returned. Britain has previously refused to extradite other Russians, including a former Kremlin insider, Boris Berezovsky, on the ground that they cannot expect a fair trial in Russia.

Politics plays a big role in extradition. Some countries—France, Russia and Israel are examples—rarely or never extradite their own citizens (though they will send back foreigners). Diplomatic clout decides which countries conclude treaties with others, and on what terms. Exact reciprocity is rare. The fourth amendment to America’s constitution requires proof of “probable cause” for an arrest. But for America to extradite someone from Britain the level of proof is rather lower: information (not evidence) that provides a “reasonable basis to believe that the person committed…the offence for which extradition is sought”. Many find that imbalance galling.




Bond bound
The biggest flaw in extradition is not politics, however, but the treatment of those who lack Mr Polanski’s wealth and connections. As extradition becomes speedier and procedures tighter, the risk of miscarriages of justice rises, and in a way that the humble and innocent may find difficult to resist. A report to the British House of Commons this year highlighted the case of an elderly British citizen called Derek Bond, who was arrested, at gunpoint, in February 2003 while on holiday in South Africa. After being held for three weeks, it turned out that the American extradition request was based on a fraudster who had stolen Mr Bond’s identity.

A second concern is deeds that count as crimes in one country but not another. In October 2008 an Australian Holocaust-denier, Gerald Fredrick Töben, was arrested at Heathrow Airport while flying from America to Dubai. Germany wanted his extradition for publishing anti-Semitic material on his website. (An English court freed him after a month.) Free-speech defenders worry that in other cases vaguely worded laws against “xenophobia” could be used to extradite the controversial and eccentric, as well as the obnoxious.

The third worry is that rules on legal aid, interpreting, bail and the like vary widely between countries. That makes gaining justice in a foreign court dauntingly difficult. Such worries are particularly acute in the EU, where the “European arrest warrant”, a fast-track procedure agreed in 2002, has removed many of the bureaucratic barriers to speedy extradition—but also some of the safeguards. Charlotte Powell, a London-based barrister and chair of the Extradition Lawyers’ Association, notes that the desire to harmonise procedural rules has outstripped the harmonisation of substantive elements.

Moreover, the grounds on which a court may refuse extradition still vary sharply country by country. If a crime took place several years ago, notes Ms Powell, a Greek court may regard it as time-barred and decline to extradite, even though other EU countries would count it as still prosecutable. Another difference concerns what lawyers call “specialty”: making sure the person is prosecuted only for the crime the extradition order cites. Some countries’ courts are finicky about this. Others see warrants as small hooks to catch big fish.

Criminal-justice authorities understandably want their reach to be global. But they make mistakes. Standing trial in your own country is likely to give you a better chance of dealing with such errors than if you are hauled into court abroad—assuming, of course, that you come from a law-governed and civilised country.

Libel

Libel tourism

Writ large
Jan 8th 2009
From The Economist print edition


Are English courts stifling free speech around the world?

SEEN one way, it is nothing short of a scandal. Small non-British news outlets and humble non-British authors (in many cases catering almost wholly to a non-British public) are being sued in English courts by rich, mighty foes. The cost of litigation is so high ($200,000 for starters, and $1m-plus once you get going) that they cannot afford to defend themselves. The plaintiffs often win by default, leaving their victims humiliated and massively in debt.

There is another side to the story, of course. Attempts to collect damages for libel and costs from people outside Britain are rare and often fruitless. Just because someone is rich, or holds a foreign passport, or lives abroad, that does not mean that they should not seek justice in an English court. Sometimes the defendants are global news organisations with a substantial presence in Britain. Sometimes the plaintiffs are dissidents, complaining about libellous attacks on them by state-friendly foreign media; a lawsuit in London may be their only chance of redress.

Yet some cases are still startling.

Two Ukrainian-based news organisations, for example, have been sued in London by Rinat Akhmetov, one of that country’s richest men. One, the Kyiv Post, had barely 100 subscribers in Britain. It hurriedly apologised as part of an undisclosed settlement. Mr Akhmetov then won another judgment, undefended, against Obozrevatel (Observer), a Ukraine-based internet news site that publishes only in Ukrainian, with a negligible number of readers in England. Judgment was given in default and Mr Akhmetov was awarded £50,000 (now $75,000) in damages in June last year. The best-known case is that of Rachel Ehrenfeld, a New York-based author. She lost by default in a libel action brought by a litigious Saudi national, Khalid bin Mahfouz, over allegations made in her book “Funding Evil”. It was published in America and available in Britain only via internet booksellers. Since then she has been campaigning hard for a change in the law.

Yet no attempt has been made to collect the £50,000 in costs and damages awarded against Ms Ehrenfeld, says Mr Mahfouz’s lawyer, Laurence Harris. He adds: “It doesn’t appear that we’ve had any chilling effect at all on her free speech.” (Even now, British booksellers are offering second-hand copies of Ms Ehrenfeld’s book over the internet.) Although Ms Ehrenfeld is sometimes portrayed as being unable to come to Britain because of the lawsuit, he says there is no reason why she can’t visit England “unless she is bringing a lot of money with her”. He notes: “We abolished debtors’ prisons some time ago.”

Nonetheless, cases such as these have outraged campaigners for press freedom in both Britain and America, who are trying to change the law in both countries. The states of New York and Illinois have passed laws giving residents the right to go to local courts to have foreign libel judgments declared unenforceable if issued by courts where free-speech standards are lower than in America. Ms Ehrenfeld sought such a ruling in late 2007 in New York state courts but failed; with the new law in place she may try again.

Now the campaign has moved to the American Congress. A bill introduced into the House of Representatives last year by Steve Cohen, a Democrat, sailed through an early vote but stood no chance of becoming law. A much tougher version submitted to the Senate, the Free Speech Protection Act, also gives American-based litigants an additional right to countersue for harassment. The bills have been strongly supported by lobby groups such as the American Civil Liberties Union, which fear that the protections offered by the First Amendment are being infringed by the unfettered use of libel law in non-American jurisdictions.

Similar concerns are being expressed in Britain. In a debate in the House of Commons last month Denis MacShane, a senior Labour MP, said that “libel tourism” was “an international scandal” and “a major assault on freedom of information”. Lawyers and courts, he said, were “conspiring to shut down the cold light of independent thinking and writing about what some of the richest and most powerful people in the world are up to.” He cited, among others, cases heard in London where a Tunisian had sued a Dubai-based television channel and an Icelandic bank had sued a Danish newspaper.

Mr MacShane also said the Law Society should investigate the actions of two leading British firms that act for foreign litigants, Schillings and Carter-Ruck, implying that they were “actively touting for business”. Neither wished to comment on the record, though both, like other big law firms, have websites promoting their services and highlighting their successes.

British members of a parliamentary committee dealing with the media are now broadening a planned inquiry into privacy law and press regulation. The chairman, John Whittingdale, says the committee has received a large number of submissions from people worried about libel tourism.

These go well beyond the usual media-freedom campaigners. Groups that investigate government misbehaviour say their efforts are now being hampered by English libel law. “London has become a magnet for spurious cases. This is a terrifying prospect to most NGOs because of legal costs alone,” says Dinah PoKemper, general counsel at the New York-based Human Rights Watch. It recently received a complaint from lawyers acting for a foreign national named in a report on an incident of mass murder. “We were required to spend thousands of pounds in defending ourselves against the prospect of a libel suit, when we had full confidence in the accuracy of our report,” she says.

The problem is not just money. Under English libel law, a plaintiff must prove only that material is defamatory; the defendant then has to justify it, usually on grounds of truth or fairness. That places a big burden on human-rights groups that compile reports from confidential informants—usually a necessity when dealing with violent and repressive regimes. People involved in this kind of litigation in Britain say that they have evidence of instances where witnesses have been intimidated by sleuthing and snooping on behalf of the plaintiffs, who may have powerful state backers keen to uncover their opponents’ sources and methods.

Private matters

A further concern is what Mark Stephens, a London libel lawyer, calls “privacy tourism”, arising out of recent court judgments that have increased protection for celebrities wanting to keep out of the public eye. In December alone he has seen seven threatening letters sent by London law firms to American media and internet sites about photos taken of American citizens in America. “Law firms are trawling their celebrity client base,” he says.

The more controversial and complicated international defamation law becomes, the better for lawyers. The main outcome of the proposed new American law would be still more court cases, with lucratively knotty points of international jurisdiction involved. Prominent Americans with good lawyers may gain some relief, but for news outlets in poor countries it is likely to make little difference. And as Floyd Abrams, an American lawyer and free-speech defender, notes, a book publisher, for example, will still be nervous about an author who has written a “libellous book”.

Mr Stephens, the London lawyer, is taking a case to the European Court of Human Rights, where he hopes to persuade judges that the size of English libel damages is disproportionate. If you get only around £42,000 for losing an eye, why should you get that much or more from someone writing something nasty about you, he asks. But even limiting damages is not enough. For reform to have any effect, it will have to deal with the prohibitive cost of any litigation in London.