16 Mar 11 | Uncategorized
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.
15 Mar 11 | News and features
The Libel Reform Campaign welcomes the government’s draft defamation bill as a good step in the right direction – but Parliament needs to go further in key areas
The Libel Reform Campaign led by English PEN, Index on Censorship and Sense About Science have welcomed the government’s draft defamation bill as ‘a great starting point’ to ensure the first overhaul of our archaic libel laws, but calls upon Parliament to go further in key areas. Since its launch 18 months ago, 55,000 people have signed up to the campaign, with over half of all eligible MPs backing our Early Day Motion in the last session of Parliament. This is the first time any government has promised wholesale reform of our libel laws since 1843.
In particular, the campaign calls for:
• a stronger public interest defence
• an end to the ability of corporations to sue in libel
• more protection for web-hosts and internet service providers from liability for the words of others.
Jonathan Heawood, Director of English PEN said:
“Our libel laws allow big corporations to silence their critics even though they do not ‘suffer’ damage in the same way that a libelled individual does. Whilst we’re delighted that the government has delivered a wholesale draft bill, for the first time in a generation, it’s essential that this opportunity delivers real reform that protects free speech for writers, publishers and the citizen critic.”
Tracey Brown, Managing Director of Sense About Science said:
“The government has recognized the harmful effects of UK libel laws on science and medicine and proposes introducing a statutory public interest defence. This will need some development. As the consultation recognizes, there is still work to be done to ensure that we end up with a law that enables us all to focus on the question ‘is it true?’ rather than ‘will they sue?’”
John Kampfner, Chief Executive of Index on Censorship:
“I know that certain publications will not write about billionaire businessmen because the costs of a single libel action could ruin them. The government’s draft defamation bill is a big step forward towards ending the practice of libel tourism which has led our Courts to silence free speech around the world. But without action to reduce the cost of a libel trial, reform will protect the free speech of some, but costs will silence others.”
Dr Evan Harris of the Libel Reform Campaign:
“Those campaigning for libel reform will want to see cross-party recognition that the draft bill is a welcome step forward, but also that it does not yet reflect the extent of full libel reform that is required to properly protect free expression.”
Last week the Libel Reform Campaign published a blueprint for reform (available: www.libelreform.org). Today’s draft bill delivers just over half of the reforms set out by the campaign:
• Easier ‘strike out’ of trivial or inappropriate claims by raising the threshold of harm before a libel action can proceed
• A curtailment of ‘libel tourism’ with a stronger requirement to justify bringing a claim in this jurisdiction for claimants domiciled abroad
• A more effective and clearer defence of truth (justification)
• New clearer and wider statutory defence of honest opinion (fair comment)
• Extension of statutory qualified privilege to benefit NGOs and scientific conferences
• The introduction of a single publication rule with a one year cut off
The Libel Reform Campaign, while welcoming the conversion of the common law Reynolds defence into a clearer statutory public interest defence for all publishing, believes that this key component of the bill needs more work to give proper protection to “citizen critics”.
The government’s draft bill sets out consultation questions on some of the key areas needing reform. There needs to be a commitment to include the following in the bill:
• An end to the ability of claimants to censor criticism extra-judicially by threatening innocent hosts (including web-hosts and internet service providers) of allegedly defamatory material with libel actions
• Radical restrictions on the ability of corporations to sue in libel to protect their reputations, as applies to some public bodies
• Altering procedures in courts to reduce the time it takes to reach trial and the costs of libel actions
For more information please contact either:
Mike Harris, [email protected] 0207 324 2534 / 07974 838468
Síle Lane, [email protected] 0207 478 4380 / 07719 391814
Notes:
In November 2009, after a year-long inquiry, the ‘Free Speech Is Not For Sale’ report was published by English PEN and Index on Censorship. In June 2009, Sense About Science launched the Keep Libel Laws out of Science campaign publicising libel threats against scientists such as Simon Singh and Peter Wilmshurst. In December 2009 the three charities came together to form the Libel Reform Campaign (www.libelreform.org) with the support of a cross-party parliamentary group convened by Dr Evan Harris. Now, the Libel Reform Campaign has published “Reforming Libel: What should a defamation bill contain?” (online here: http://goo.gl/pd8Wd) which outlines what the government’s draft defamation bill should achieve.
Some key facts about English libel law:
– our libel laws are stacked in favour of claimants, of 154 libel proceedings in 2008 identified in the Jackson Review (of 259 taken to the High Court), 0 were won by defendants.
– The average cost of a libel trial in England & Wales is up to 140 times the European equivalent. The most expensive libel action in 2008 cost £3,243,980 and the average cost for the 20 most expensive trials was £753,676.95. As the recession has deepened increasingly corporations are suing each other in a ‘race to the bottom’ to bolster their public profiles, the number of libel cases involving a business suing another business tripled last year.
The political significance:
All three main political parties committed to libel reform in their general election manifestos and it is in the coalition agreement.
This is the first attempt at wholesale reform of our defamation laws since the Libel Act 1843. Limited changes were made in the 1952 Defamation Act and 1996 Defamation Act.
The majority of eligible MPs in the last Parliament signed Early Day Motion 423 calling for libel reform. Jack Straw set up a working party to look into reform.
13 Mar 11 | Uncategorized
Academic book reviewing is becoming more dangerous. Pan your peers at your peril. If you express sincerely-held negative views about a book, you may find yourself defending your criticisms in court. This kind activity is poorly paid, and many academics even do it for nothing. Perhaps they should question whether benefits outweigh possible losses. Many are unaware of the risks they are taking given current libel laws.
A recent case in France, described here in the Times Higher Education, though, went the way of the critic. Law academic and libel tourist Karine Calvo-Goller lost her attempt to prosecute a journal editor for publishing a scathing review of one of her books about the International Court. Calvo-Goller’s complaint was that the review contained factual errors and could harm her professionally. The journal editor, law professor Joseph Weiler, stood his ground and refused to remove the online version of the review on the grounds that that would have compromised academic freedom and intellectual integrity. Thankfully the review was deemed within the limits appropriate to academic criticism freedom of expression.
Factual errors or presumed factual errors occur frequently in reviews and are usually unintentional or a question of interpretation. Most journals can publish corrections and come-backs in subsequent issues, though it is difficult for a slighted author not to appear tetchy in the subsequent exchanges. The idea that academic book reviewers should be prosecuted for sincere mistakes or strong opinions is a bit like threatening boxers with charges for throwing punches in the ring. If we are going to have a lively academic environment we need to accept that from time to time blows will land below the belt. Anyone who persistently aims low, though, does themselves as much or more damage than their opponent.
11 Mar 11 | Uncategorized
At a rally in parliament yesterday, MPs and Peers responded to the Libel Reform Campaign’s blueprint for reform in advance of the publication of the Government’s defamation bill next week, saying this is a ‘once in a lifetime chance’ to radically reform the laws. Read the blueprint, What should a defamation bill contain?, here.
Lord Bach, Opposition Spokesperson for Justice, said that “reform of the defamation laws is clearly a cause whose time has come. This is a campaign that has massive support. I congratulate the Libel Reform Campaign on having got to this stage.”
His comments were echoed by other MPs and Peers.
David Davis, MP for Haltemprice and Howden, agreed that “we have a massive mandate for change here; there is no doubt about that. This is a once in a generation opportunity. If we get it wrong our children pay the consequences.”
Denis Macshane, MP for Rotherham, reiterated “this is not a once in a generation chance, but once in a lifetime. We cannot let this slip.”
Lord Willis of Knaresborough urged the campaign to continue to “use all of its might to make sure the Government’s bill is translated into real action.”
Lord Lester of Herne Hill said, “The problem for libel reform is we are not starting with a clean slate but with 300 years of case law.”
Read the rest here
