American publishers who’ve long felt constrained by British libel law saw the publication Tuesday of the UK’s draft defamation bill as a crucial step to reforming a system that can’t be addressed by protective US measures alone.
“It’s a huge milestone, because it had seemed that for years the discussion of libel law reform was one that only expert barristers and soliticitors who are steeped in that area of practice were engaged in,” said David Heller, a senior staff lawyer for the Media Law Resource Center in New York.
The MLRC has for about six or seven years been advocating on behalf of US newspapers, magazines, book publishers and broadcasters for reform of British libel law, as its impact beyond the UK has intensified in the age of the Internet.
“In a global publishing world, with the web — where you can if you want speak to a global audience, and if you don’t want to, your material on the web is generally accessible anyway — there was a growing clash of defamation laws between countries,” Heller said.
The draft released Tuesday still doesn’t include everything the MLRC would like to see. Heller pointed in particular to the burden of proof, which still lies heavily on the side of the defendant. The MLRC is also eager to see included specific protections for Internet service providers and limitations on the rights of corporations to sue. Heller was pleased, however, that the draft law addresses a requirement for establishing substantial harm — a standard more in keeping with US libel law — and provisions to curb libel tourism and to create a single publication rule.
American publishers and writers earned a degree of protection last year, when the US passed a federal law shielding citizens from foreign libel judgments inconsistent with the free-speech protections in the U.S. constitution. (A Florida-based website sued for libel in Canadian court has in fact just invoked the new U.S. law for the first time.) But the US SPEECH Act alone — without systemic reform of the British system — doesn’t entirely address the problem.
“There are American publishers and American authors with interests in the UK, and there are probably publishers who would like to be able to publish in the UK without a sword of Damocles hanging over their head,” said Judith Platt, who directs the Freedom to Read and International Freedom to Publish committees with the Association of America Publishers.
Her fear is not simply that US writers and publications have been sued in the UK, but that in many cases writers and publications have simply chosen not to publish at all for fear of being sued.
“It’s not quantifiable because it’s very hard to say what hasn’t been published because of the fear,” she said. “But that’s another incredible reason for reforming libel laws: things that are not published, things that are not said, information that’s not made available to the public because of fear of abusive defamation laws.”
Platt also appealed — as did author Rachel Ehrenfeld this week — to the notion that two countries so closely allied in many other ways should better align their protections for the shared value of free expression.
“George Bernard Shaw said we’re two countries divided by a common language,” Platt said, laughing. “But in point of fact, we are united, we are very interested [in each others’ work]. I read Booker Prize winners all the time, and American bestsellers are very popular in England. So just in the interest of the free flow of information, it’s an important part of it.”
Platt and Heller’s enthusiasm for the new bill — with a few qualified reservations — was shared this week by several other US organisations.
The US Center for Inquiry, which promotes a secular society based on science, reason, freedom of inquiry, and humanist values, has been particularly concerned by the impact of British libel law on scientific inquiry. Derek Araujo, the center’s vice president and general counsel, sent Index this statement on the draft bill:
“Scientists, scholars and journalists everywhere should welcome the UK government’s willingness to reform its draconian libel laws. The ill effects of these harsh laws extend far beyond the UK’s borders. The [English] legal system’s infamous “libel tourism” has stifled freedom of speech, freedom of inquiry and scientific research across the globe. At the very least, Parliament must ensure that any reform package contain a strong public interest defense. Doctors, scientists and journalists should not be intimidated into suppressing their findings out of fear of ruinous UK libel suits.”
Freedom House, another US-based free expression organisation, has been closely following the reform movement as well because, according to Chris Walker, its director of studies, the law’s “multiplier effect in globally suppressing information on corruption and international security issues has far more dangerous implications.”
“The proposed reform in England is therefore an important step because it signals seriousness on the part of decision makers there to pursue reform,” Walker wrote in an email from the Czech Republic. “The proposed draft contains a host of important measures, ranging from restrictions on jury trials to statutory defenses against libel claims. At the same time, it is essential that in the end this reform initiative gets it right in ensuring that wealthy individuals can no longer succeed in muzzling free speech on major international issues by using English libel laws as a legal weapon to silence or cow those who criticise them.”
Heller also offered one more caution as advocates on both sides of the Atlantic await the next steps in the process.
“There’s factor here, which is also that some of these changes in the law will in the end have to be interpreted and applied by the judges in London who hear libel cases,” he said. “It also depends a little bit on that, whether they will apply any libel reform laws in the spirit in which they were intended.”
