The US senate last night passed legislation to protect US journalists, writers and publishers from “libel tourists” — litigants who sue Americans in foreign jurisdictions which place a lower emphasis on free speech
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Yesterday (13 July), the Senate Judiciary Committee approved legislation to protect US journalists and publishers from “libel tourism”. The SPEECH (Securing the Protection of our Enduring and Established Constitutional Heritage) Act will now go before the full senate. The impetus for the bill follows a number of law suits instigated against American writers in foreign courts in order to exploit their weak libel laws. For example, New York based academic Rachel Ehrenfeld was sued in London despite only 23 copies of her book, on the financing of terrorism, being sold in the UK. If passed, the proposal will prevent federal courts from recognising foreign libel ruling that are inconsistent with the First Amendment and will allow affected persons to apply for a declaratory judgement confirming that verdicts against them are non-enforceable. The bill, co-sponsored by Democrat Patrick Leahy and Republican Jeff Sessions, is believed to have a high prospect of being enacted because of its broad cross-party support.
This article originally appeared on Comment is free
Jack Straw’s announcement yesterday on libel law reform marks a significant sea change. Ten months ago, the justice secretary told the select committee inquiry on libel, privacy and press standards that he had yet to be convinced that there was a significant problem with libel tourism – where foreign claimants bring their cases to English courts. He is now proposing to limit the ease with which foreign claimants can be heard in this jurisdiction, as well as introducing a single publication rule and considering a statutory defence to protect publications that are in the public interest. He has, in short, acknowledged that the balance was tipped too far in favour of protecting reputation at the expense of free expression.
His support for reform is testament to the lobbying power of a rarealliance of campaigners who provided compelling evidence that libel reform was not simply about protecting the interests of the media establishment, but about safeguarding the free speech of the public as a whole – whether it’s the freedom of a cardiologist to critique a surgical device or the freedom of a science writer to question the efficacy of alternative medicine. Proposals for reform that seemed unpopular and unfeasible just a year ago now sound like common sense. The select committee’s whole-hearted support for reform in its report on privacy, libel and press standards last month was, without doubt, an important endorsement and the final push for change.
This is not, however, the end of the story. One of Straw’s more controversial changes – slashing lawyers’ success fees in conditional fee agreements – is now being threatened with judicial review and it’s likely that his latest proposals will meet with further resistance. Nor are all the justice secretary’s proposals secure: Straw has announced that no more than “consideration” will be given to one of the most important reforms of all – creating a statutory public interest defence. For NGOs investigating corruption and scientists criticising treatments, this remains a much-needed protection. Over the past few months, NGOs (Index on Censorship, English Pen and Sense about Science) have sent evidence to the libel reform campaign that details the extent to which fear of libel action is inhibiting publication of research that is clearly in the public interest.
Furthermore, while the welcome introduction of a single publication rule goes a long way towards rescuing the internet from the tyranny of a 19th-century precedent, which has ensured that every download of a story was a new publication and therefore potentially a new libel suit, there is still need for enlightened reform. Mr Justice Eady, much reviled for being the bane of free speech, wisely suggested last month that there was need for an international agreement that would address the new challenges posed by the internet. Let’s hope that Labour can follow through its promise of a libel reform bill in the next parliament. While Dominic Grieve dismissed the proposals yesterday as “pre-election posturing”, Jack Straw’s blow for free speech prompted the Conservative party to declare its strongest support to date for reform. Let’s hope they all mean it.
In a major report, MPs’ have urged the government address the “mismatch in resources between wealthy corporations and impecunious defendants”, to find ways of limiting the cost of libel actions and to end the “embarrassment” of libel tourism. The select committee also made a series of recommendations on improving the self-regulation of the Press, increasing the number of lay members on the Press Complaints Commission and giving the regulator powers to fine or suspend publications.
But how do experts see the proposals?
Emily Bell is director of digital content for Guardian News and Media
I’ve mixed feelings about the report, on one level its fantastic, it is a vindication of the Guardian’s investigation into the phone hacking, and it also makes some sensible suggestions on libel. As a web editor I have concerns because the report is rooted in old media, in newspapers. The committee’s web comments proposals underestimate how onerous and expensive a moderation operation is to run. The proposals could damage an already fragile economic model. How would the committee define a publication? Would bloggers be forced to moderate comments on their site, will this affect networks like Facebook.
The real problem is that the sands seem to constantly shift beneath us as individual members of the judiciary set legal precedent. At least the committee’s proposal for a one-year time limit would remove the dangers of the newspapers archives counting as continuous publication.
Alan Rusbridger is Editor of the Guardian
I would have been happier if the committee had gone the Australian route and barred larger corporations for suing for libel except where deliberate malice could be shown. But, failing that, I think it would certainly be an improvement for the burden of proof to be reversed, and for a capping of costs.
Camilla Wright is founder and Editor of Popbitch
The report seems to be making all the right noises to fall into step with current fashion without any making any real attempt to guide how any effective change might happen. The call to overhaul libel laws, particularly in relation to costs and libel tourism obviously reached a tipping point some time ago, so the House of Commons is really just playing catch up, although the suggestion that journalists’ burden of proof might not be so onerous in cases of corporate defamation is very interesting.
In respect to privacy issues – such a hugely important area of law since the rich and famous started using Article 8 to keep media noses out of any parts of their lives they didn’t want – there’s nothing substantive coming out of this report except the point very firmly made that parliament wants nothing to do with legislating to sort out the current freedom of expression vs right to privacy bunfight.
Where the report makes some very hardline recommendations is on forcing newspapers to take responsibility for user-generated material – most specifically comments. It smashes apart the convention that this responsibility only really kicks in when the newspaper has been made aware of a complaint and instead puts the onus on the newspaper to make sure that comments contain nothing “offensive”. Well, one person’s offensive is another person’s joke or discussion point, so for me this would sound the death knell for online comments. While your first thought might be “Who would miss them?”, by taking away such a simple mechanism for readers to debate and interact with the newspapers we might weaken the attempt to improve levels of trust between the public and media.
Lord Lester QC is a human rights lawyer and Liberal Democrat peer
I welcome the report in seeking to strike a fair balance between free speech reputation and personal privacy. I will introduce a private members bill to give effect to some of the committee’s recommendations.
Charmian Gooch is a founder and director of Global Witness
The tone and direction of this report is broadly welcome, and some of the specific recommendations are good. However it will be a challenge to make sure that the Government can follow up on the many recommended consultations. We face threats on a regular basis and so had hoped for more concrete recommendations to protect campaigning organisations working on public interest issues. The decision not to recommend mandatory pre-notification is welcome, however we are concerned that the ‘public interest’ test is not clearly defined and may enable corrupt dictators to obstruct our exposés into their dirty dealings. The sort of responsible, fact-based campaigning we do is under threat, and this report does not do enough to redress that. Without further concrete reform, some of the world’s most egregious individuals will still be able to exploit the justice system to launder their reputations and defend their continuing corrupt activity.
Andrew Scott is a senior lecturer in law at the London School of Economics
On privacy and libel, the report is quite the curate’s egg. On the down-side, the committee has bought a pup on the ‘libel tourism’ issue. The only context in which libel tourism is a concern is where it overlaps with the chilling effect wrought by abusive actions brought to silence relatively weak defendants. For such defendants, the key problem is a combination of sheer cost and personal hassle. It is surprising that the committee should seek to validate the lobbying success of American mass-media organisations which, under the guise of concern for impecunious defendants, have moved to insulate themselves at home from liability for damage to individual reputations caused by publications made abroad. The better route is to focus attention on libel costs and procedures in the hope of reducing the burdens faced by all parties, to contemplate changes to rules on internet archives and corporate standing, and to introduce the right for defendants to counter-sue where libel is misused to silence them. In many of these respects, the committee’s reflections are eminently sensible.
On the up-side, the report offers a robust defence of media freedom against the seductive logic that underpins the privacy-based insistence on prior-notification. While Max Mosley can be forgiven for not seeing beyond the end of his own nose, the rest of us must properly take into account the deleterious impact that his siren calls could have on public knowledge of important matters. Nonetheless, the committee is right to call for responsibility at the pre-publication stage, and heavy culpability for error if and when things go inexcusably wrong.