This article was originally published in the Financial Times
You know things are bad when your closest ally introduces legislation to protect its citizens against your courts. English libel law had become so unbalanced, so hostile to free expression, that US president Barack Obama signed such an act last year insulating Americans from British judgments.
Now the UK’s reputation as a cosy base for pariahs may be coming to an end. The draft defamation bill published on Tuesday marks a shift not just for Britain, but for the rights of scientists, academics, consumer groups and bloggers around the world. For years, the rich and powerful — wherever they have lived — have used English courts to silence those who try to seek out information. London was “a town called sue”, as the saying went.
Politicians have come a long way. When we launched the Libel Reform Campaign in November 2009, only the Liberal Democrats supported change. Now the cause has cross-party support. As the introduction to the bill makes clear, the aim is not to abolish libel or to allow a free-for-all in which reputations are impugned without redress. It is about balance and proportion.
Among the many welcome provisions, a statutory public interest defence and a defence of fair comment will ensure a fairer test of the bona fides of writer and publisher; scholarly research and publications by charities will fall under the same “qualified privilege” that applies to reporting of parliament. Other changes include a single publication rule, ensuring that libel writs will be time-limited.
Libel tourism has become an industry – and the most symbolic demonstration of what MPs last year called a “humiliating” state of affairs for Britain. Until now it has taken little more than a subsidiary office or a second home for oligarchs, sheikhs and others to use English courts to help launder their reputations. The cases have included a Ukrainian oligarch suing a Ukrainian blogger, a Saudi billionaire suing an American writer and a Greek citizen pursuing a case against two American newspapers.
Under the proposed changes, foreign claimants will have to prove that their reputation has suffered substantial harm in the UK and, more importantly, that courts in London are better placed than any other to hear the case.
More often than not, libel actions never make it to court. With costs more than 100 times the European Union average, few human rights organisations or academics can afford to defend themselves. In most cases, defendants are persuaded by their lawyers to apologise, to settle quickly, even when they have nothing to apologise for. Even defendants who win invariably end up out of pocket. It is no surprise that self-censorship has become the norm.
This legislation is a big achievement for the coalition government. Yet for all the enthusiasm and show of unity from Ken Clarke, the justice secretary, and Lord McNally, his deputy, they have fought shy of tackling two of the toughest issues. Internet service providers remain potentially vulnerable to defamation suits for any material carried on their portals. The biggest weakness of the bill, though, is its failure so far to grapple with the power of large corporations. They will continue to have the same rights to claim for damages as an individual. The inequality of arms remains. Both of these areas are being put out to consultation.
Legal firms that make lavish profits from wealthy claimants will fight their corner, lobbying for the bill to be watered down beyond recognition. Will ministers buckle? This is a once-in-a-generation chance to enshrine into law that most cherished of freedoms — to hold truth to power.
