15 Feb 10 | Uncategorized
In the wake of the John Terry case the Guardian gathered a panel of libel experts — including Index’s Chief Executive John Kampfner – to debate legal reform.
The discussion, chaired by the Guardian’s Director of editorial legal services, Gill Phillips, included three claimant media lawyers, Dominic Crossley from the law firm Collyer Bristow, Sarah Webb from Russell Jones & Walker and Jonathan Coad from Swan Turton; Kampfner, Jane Martinson, MediaGuardian’s Editor, and Gavin Millar a QC from Doughty Street Chamber who represents the press lined up on the other side.
The panel covered libel tourism, the public interest defence, codification, costs, procedure, juries and the burden of proof.
Libel tourism is a non-existent issue if you speak to claimant lawyers and judges — see Lord Hoffman’s speech earlier this month — but there’s an interesting quote from Millar who claims that our claimant-friendly system is particularly hospitable to the wealthy and powerful.
We have to be very careful about saying that there aren’t many visible cases of forum-shopping. Most of my American clients who have libel claims filed against them in the high court have stopped fighting them. They’ve decided it’s not worth it any more. Other foreign clients are reluctant to write on the internet because they are scared of being sued. The current law was formulated on the basis of principles designed for commercial cases, not for 21st-century media cases with significant freedom of expression elements.
John Kampfner argued libel law as it stands is chilling free speech, forcing journalists to self-censor. He gave an example.
[A] good broadsheet editor told me that his board had said to him: ‘Please lay off the oligarchs – it’s just not worth our while.’ How can you quantify that? Things are not reaching the courts in the first place because the journalism is not being done. That is what the current law is doing.
The only area the group seem to have found any common ground was an agreement that costs are spiraling. If you want an illustration of why the cost of defending a libel action is prohibitive, look no further that a recent example provided by Private Eye. The magazine reports that model Matt Peacock accepted £15,000 from the Sunday Mirror after the paper claimed his relationship with his former wife Jodie Marsh was violent. The legal costs were eye-watering. Carter Ruck claimed £380,000, an astonishing 25 times more than their client received.
06 Feb 10 | Comment, News and features
This article was originally published in the Independent
John Terry’s is only the latest attempt to suppress free speech for financial reasons argues John Kampfner
This was the week that the legal establishment bit back. For three months since Index on Censorship published its Libel Reform campaign in coalition with like-minded organisations, we’ve had pretty much an open field.
The evidence we have brought to bear has been compelling. Libel tourism – in which dodgy foreign oligarchs and sheikhs use our indulgent courts to sue NGOs, authors and scientists – has been such a blight on Britain’s reputation that the US Congress is pushing through legislation seeking to protect American citizens from our courts. What greater humiliation could our closest ally inflict on our judicial system?
The Justice Secretary, Jack Straw has expressed his determination to introduce significant changes in coming weeks and months. The two areas most ripe for change are likely to be stronger direction to judges not to take on cases of libel tourism, or at least to set the bar far higher for a plaintiff to argue that, even though they do not live in the UK, their reputation here has been irrevocably damaged. The other is costs. The idea of no-win, or conditional fee agreements, was designed to increase access to justice for the impecunious. In a classic case of unintended consequences, it has instead allowed the rich and powerful to string along defamation writs, in the full knowledge that small organisations do not have the strength or the cash flow to sustain a defence. This has led to a plethora of people settling out of court, even where their case is watertight.
It was, therefore, a matter of time before the backlash would begin. It has taken three forms: large and avaricious legal companies increasingly alarmed that key sources of revenue might be endangered; senior lawyers and judges who, whatever their personal positions, do not like to be put on the spot by upstarts from the third sector, and individuals who have done well out of the existing system.
Max Mosley’s interview on BBC Radio 4’s Today programme this week was, I admit, compelling listening. The Formula One racing boss, who won £60,000 in damages from the News of the World after it alleged he had been involved in a “Nazi orgy”, said individuals should have a “right to notification” before any allegations are printed about them, “so that if you wish you can go to a judge and if you can convince the judge he’d stop publication”.
Mosley’s case brought together the adjacent issues of libel, privacy and injunctions. The broader issue is enshrined in Article 8 of the Human Rights Act. Most advocates of constitutional modernisation and civil liberties were delighted with the incorporation of the European convention into UK law a decade ago.
Yet again a well-intentioned measure has been traduced in the practice. The act has enabled a considerable shift in the balance between the right to know and the right to privacy – that privacy being accorded predominantly to the rich and powerful.
The right of all individuals to a private life that is entirely private is compelling. What has happened, however, is that changes have taken place through arbitrary interpretations from a small number of judges. What is the definition of a private life? Is there any link between activities in the home and in the workplace? These are all important questions, but the debate has not been held.
Hence, in a characteristically British way, law has been made on the hoof. The sudden thirst for privacy has breathed new life into the injunction and the pernicious super-injunction. There may be the odd case for not only preventing publication but also preventing reporting of such a ban, such as when it might endanger life or cause serious damage to children.
Instead the injunction has become a catch-all device simply to stop the media from reporting facts that might embarrass companies or individuals. John Terry, who was yesterday stripped of his captaincy of the English football team after revelations of an affair with the ex-girl friend of a team mate, is only the latest and most ill-advised attempt to suppress free expression for reasons of purely individual reputation and commercial interest.
The least reported but most bizarre intervention of the week came from Lord Hoffman, a recently retired law lord of impeccable liberal credentials. In a lecture striking for its defensiveness and its Little Englander appeals, Hoffman took umbrage at a report last year by the UN Human Rights Committee that attacked English libel law as chilling free speech not just in the UK but around the world.
Hoffman suggested that Rachel Ehrenfeld, whose case shed light on libel tourism, had been in league with US neoconservatives. He dismissed the legislation that has been passed by a number of US states and is going through Congress as seeking to enshrine American legal hegemony. He saw no particular problem with the state of English libel law and insisted that the right for anyone to be able to use any country’s courts to sue for defamation should not be challenged.
Meanwhile, two academics, Professor Alastair Mullis of the University of East Anglia and Dr Andrew Scott of the London School of Economics, have, to the evident pleasure of Britain’s more avaricious law firms, published a document styled as a “rejoinder to the clamour for the reform of defamation”. They argue that while they are not averse to the idea of a review, critiques such as ours have been too broad and the proposed reforms are too sweeping and indiscriminate.
The battle has now been joined. The forces of reaction, those who are hostile to the very idea of a First Amendment defending free speech, have entered the fray. They are lobbying hard senior figures in the Labour and Conservative parties.
The issue of libel reform, the questioning not of the principle but the application of privacy law and super-injunctions, is not about journalistic self-interest or the right of tabloids to pry. These measures have chilled NGOs from reporting torture carried out in dictatorships; they have stopped authors in their tracks from unearthing inconvenient truths; they have prevented scientists from conducting robust research. It is no wonder that so many vested interests are resistant to change.
John Kampfner is chief executive of Index on Censorship
05 Feb 10 | Comment, News and features, Uncategorized, United Kingdom
British courts represent a serious threat to freedom of expression, our libel laws suppress free speech around the world, argues Ken MacDonald
Prominent amongst those things that we believe define us is our ability to exercise our vocal chords. This right is something we instinctively feel should only be limited in the most exceptional circumstances. And we are right to take this view.
But I think we need to acknowledge that the freedom to speak frankly and freely has been under threat in our country in recent years. Sometimes it seems that Home Secretaries have pretended to promise boundless security and the rest of us have suffered the consequences.
So this debate is not just about defamation and privacy laws and libel tourism. And it goes beyond superinjunctions and the less than attractive corporate bullying that we see of scientists and researchers.
It includes the broadening of criminal speech, so that even religions, belief systems, are granted the special protection of the law and you can commit a crime by describing them in a particular way.
And it’s about terrorism legislation. It’s about criminalising the possession of articles, often consisting of books freely available on the Internet, and foolish and unnecessary new offences of encouraging terrorism, as though incitement were no enough.
So where do we place English libel law in this battle ground? How does it face up to this shining principle, this right to speak freely, and to exchange views and ideas without the fear of the dock or the witness box? Which side is our libel law on?
Well, the Americans are pretty clear. Many of their state legislatures have enacted laws protecting US citizens from the chilling grasp of our current law, by making English libel awards unenforceable in US courts.
And now the US House of Representatives is considering a bill to protect all American citizens in the same way.
Of course the Americans have long given free speech far greater protection than we have. To their credit, many of us would say. But it’s not just the Americans.
The United Nations Human Rights Committee has said that our libel law was encouraging critical reporting on matters of serious public interest and adversely affecting the ability of scholars and journalists to publish their work.
Critically it said the internet meant that all this was having a depressing effect upon freedom of expression across the world.
Let me give some examples:
October 2007, Kiev Post story about allegedly corrupt land deals in that city. Obviously written in Ukrainian. Only 100 subscribers here. Yet Rinat Akhemetov was permitted to sue here.
January and February 2007. A Ukrainian Internet news sites published an article about the same man’s youth. A hundred or so subscribers here. Again he was allowed to sue here.
Now Ukraine is probably a country that could do with more, rather than less, free speech. To put it in moderate terms, it’s a shame our courts are being used to deliver the opposite.
And it’s not only foreigners who feel the chill wind of all this.
A UK hospital consultant speaking at a medical conference in North American criticised a new piece of medical equipment. A specialist Canadian website carried his comments. He’s now being sued, not in North America – where the claim would be thrown out with contempt – but here by the manufacturer.
And famously, Simon Singh, the well-known science writer. He wrote an article in the Guardian saying that the British Chiropractic Association ‘happily promotes bogus treatments’.
Since their treatments include the suggestion that spinal manipulation can cure migraine and eliminate ear infections, I’m tempted to express an opinion of my own. But I’d better not. The BCA are suing Singh. Personally.
Incidentally, I see he had an interlocutory appeal listed in the our of Appeal later this month. Interestingly, it is apparently to be heard by the Lord Chief Justice, the Master of the Rolls and Lord Justice Sedley.
Perhaps the court will say that our law should be nurturing the free exchange of ideas. It should be protecting research and science. It shouldn’t encourage corporate bullying. It should allow free and autonomous people to be thoroughly offensive to one another. And it certainly shouldn’t have any role in shielding chancers and charlatans.
Above all, our law should not associate our country with the suppression of free comment or the stifling of information so that it dies before it can pass around the world. We don’t really want to be discouraging journalists in the Ukraine.
None of this is to say we don’t need libel laws. Of course we do. Malicious and deliberate falsehoods should always be actionable. Gross distortions and inaccuracies must be susceptible to challenge. Powerless people need to able to protect their reputations in the face of powerful media onslaught.
But the law should be set up to interfere in the minimum way with free expression.
Jack Straw has set up an inquiry into our libel laws. It has a broad based membership. Let me make conclude with some modest suggestions.
Single publication rule
In an internet age, we need to get away from the idea that every publication is a separate offence. We should replace Duke of Brunswick rule, which is surely showing its age with a defence of the non-culpable republication.
Jurisdiction rule
This is particularly damaging and has led directly to some of the causes I described earlier. We should prefer the American rule.
A claimant should have to show that a defendant’s Internet publication is targeted directly at the state in which a case is subsequently brought.
In the US, the fact that a publication is merely available in the jurisdiction is not sufficient to found jurisdiction.
Denying corporations the right to sue
In Australia, bodies of over 10 people are prohibited from suing unless they can show malice or deliberate recklessness. Again, this would have prevented some of the cases I have described.
Corporations have a wealth of other means for counteracting inaccurate claims about them. Advertising, PR, access to the media etc. They really do not need to bring personal claims against scientists. Not if they want to retain any public respect.
Libel tribunal
A form of cheaper arbitration with the power to order appropriately prominent retractions and apologies. And a power to order suitably capped damages. Retraction and apology should be at the heart of any system of remedy.
And what about the other side. One of the reasons that public are not more exercises about these issues is probably because the press have long behaved so badly that no one cares if their expression is restricted. Richard Desmond’s newspapers’ vile attacks on the McCann’s are just one example.
But this public cynicism is very dangerous. It devalues something in all of us. And it creates a climate in which repression becomes too easy
So perhaps public confidence needs boosting.
Independent regulation of the press
This one that isn’t spoken about much. Perhaps it deserves an airing. The press may think the PCC works, but they are living in a dream world. Nobody else does
Actually, self-regulation doesn’t work in any sphere-and newspapers are the first to criticise other professions that control themselves in this way. Why? Because it has no credibility. The public doesn’t begin to trust it – and they’re right not to do so.
We have independent regulation of television through Ofcom. Does that inhibit BBC News for doing its job. Is ITV stymied by the regulators?
More acknowledgement by the press of their own failings would usefully go side by side with some of the reforms I have suggest.
Sir Ken MacDonald QC practises from Matrix Chambers and was director of public prosecutions, 2003-2008, he is also a trustee of Index on Censorship.
This is an edited extract of a speech he delivered last night at Gray’s Inn.
27 Jan 10 | Index Index, minipost, Uncategorized
The full membership of the Justice Department’s libel working group, which convenes tomorrow (28 January), has been announced. The working group will be chaired by Rowena Collins-Rice, Director-General, Democracy, Constitution and Law and Chief Legal Officer at the Ministry of Justice.
The members are:
David Banks (Media Law Consultant) @DBanksy
Tracey Brown (Sense About Science) @freedebate
Sir Leszek Borysiewicz (Chief Executive of the Medical Research Council)
Desmond Browne QC (Barrister, 5 Raymond Buildings)
Rod Christie-Miller (Partner and Chief Executive at Schillings, Solicitors)
Robin Esser (Executive Managing Editor, Daily Mail)
Jo Glanville (Editor, Index on Censorship) @Indoncensorship
Jonathan Heawood (Director, English PEN) @jheawood
Tony Jaffa (Head of the Media Team at Foot Anstey, Solicitors)
Sarah Jones (Head of Litigation and Intellectual Property, BBC)
Marcus Partington (Chair of Media Lawyers Association, and Legal Director, Mirror Group Newspapers)
Gillian Phillips (Director of Editorial Legal Services, The Guardian)
Gavin Phillipson (Professor at Durham Law School)
Mark Stephens (Partner at Finers Stephens Innocent, Solicitors) @markslarks
Andrew Stephenson (Partner at Carter Ruck, Solicitors)
Paul Tweed (Senior Partner at Johnsons, Solicitors)
John Witherow (Editor, Sunday Times)
