Originally published in the Sunday Times
When another country introduces laws to protect its citizens from your courts, you have a problem. When that country happens to be your closest ally in times of war and peace, you have a crisis. That is the state of English libel law.
Both houses of Congress are considering bills that, if passed as expected, will prevent US courts from enforcing libel judgments issued overseas if the content would not be considered defamatory under American law.
It was against this backdrop that Index on Censorship, the anti-censorship organisation, and English PEN, a group that supports persecuted writers, embarked on a year-long inquiry into the state of our legislation. Our report, launched on November 10, created a storm of interest here and across the Atlantic, with each of our 10 proposals closely scrutinised.
These include capping costs and damages that have escalated out of control, shifting the burden of proof to the complainant, expanding the notion of public interest defence and ensuring that no case should be heard in the UK unless at least 10 per cent of copies of the relevant publication have been circulated here.
This latter point goes to the heart of the problem. London is the centre of what has come to be known as libel tourism. From Middle Eastern sheikhs to Russian oligarchs, the rich and powerful use our legal system to bully people who try to hold them to account. We list a number of examples in our study — from Ukrainian and Saudi businessmen, to South African manufacturers of vitamin pills, to an Icelandic investment bank.
Our main task has been to persuade MPs and others in public life that what is at stake is not only the rights of the media — an industry whose reputation is almost as low as that of politicians. The big chill on free speech affects ordinary people around the world — from scientists to other academics, from non-governmental organisations to bloggers — who have fallen victim to a chilling effect presided over by the English courts. Sometimes the cases make the courts; often people are forced to apologise, even when they know they have done nothing wrong.
Our report has been accepted as evidence by the Commons select committee on culture, media and sport, which hopes to deliver its long-awaited report on press standards, privacy and libel before the end of the year. The mood among MPs may be shifting as it is bombarded by evidence of the UK’s errant ways. As The Sunday Times reported earlier this month, prominent US media outlets such as The New York Times and the Los Angeles Times have submitted a memo to the committee warning that they may cease publishing in Britain for fear of falling into the libel trap.
As for the political parties, the Liberal Democrats are fully behind radical change to the law; the Conservatives may also be moving in that direction. Sadly, Jack Straw, the justice secretary, and Gordon Brown have yet to apprise themselves of the depth of the problem and the humiliating effect it is having on the UK’s international standing. And what of the lawyers? I was intrigued to see two senior figures from Carter-Ruck, the past master of defamation suits and super-injunctions, attend the launch of our report. They have since gone into full lobbying mode, protesting that apart from a few tweaks all is well.
Carter-Ruck has become a convenient whipping boy; but its behaviour is of secondary importance. It falls into the same context as, say, tax advisers who help the rich and powerful take their money offshore.
One should not underestimate the power of such firms, however. They are applying considerable pressure on MPs to maintain the status quo. They cite the example of the McCann family as proof of both “feral media” (to use Tony Blair’s phrase) and the need for a robust defence of reputation in law. The vilification of the McCanns was one of the most egregious examples of attack-dog journalism. Our proposed changes would not in any way have prevented them from successfully suing the media organisations which so wronged them.
Protecting the innocent is vital. People are entitled to redress when they have been maliciously and falsely impugned. But the balance has gone badly awry.
It is now extremely difficult, and prohibitively expensive, to mount strong investigations into criminal or unethical activity. We do not know the scale of the crisis because many people are exercising self-censorship. For example, scientists are wary of referring to drug trials in their academic works, for fear of multinational manufacturers destroying them in the courts. Charities fear shaming foreign dictators, for fear of our judges.
Free expression is not an add-on. It is vital to democracy, not just ours but other countries’ too. The Americans have woken up. It is time we did.
Read the Index/PEN report at libelreform.org
