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.

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.

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.