As Index on Censorship and English Pen launch “Free Speech is Not For Sale”, a damning report on English libel laws,
John Kampfner highlights the pressing need for reform
Britain is a pariah state, shunned by its allies and exploited by the unsavoury. The state of English libel laws (Scotland’s provisions are a little better) is so embarrassing that a number of US states have enacted legislation to protect their citizens from our courts. London is the global centre of libel tourism. From Middle Eastern potentates to Russian oligarchs, the rich and powerful use our legal system to bully people who try to hold them to account.
Sometimes cases make the courts; more often individuals, authors, newspapers or charities involved are forced to apologise even when they know they have done nothing wrong. This is the big chill. This has gone far beyond the rights of the media. It affects people in all walks of life. Thanks to the UK, abuses around the world are hushed up, for fear of what might happen if a single copy of a publication, even if it originated abroad, is found in Britain.
Finally, Parliament is waking up. The Select Committee on Culture, Media and Sport is preparing to deliver a long-awaited report on the press standards, privacy and libel. The early signs were that MPs had succumbed to the lazy thinking that the “feral beasts” — to borrow Tony Blair’s description of the press — needed taming. They were struck by the testimony of Gerry McCann, and so they should have been, as the hounding of the McCanns was one of the most indefensible acts of media behaviour of recent years.
But belatedly, politicians appear to understand that it is possible to devise laws that protect innocent people from harassment while encouraging dogged investigation.
The recent attempt to override centuries of parliamentary sovereignty woke MPs from their slumber when the law firm Carter Ruck appeared to suggest that a parliamentary question about the oil trading company Trafigura should not be reported. Carter Ruck, which has been prominent in imposing so-called super-injunctions — where not only can a case not be reported but the very existence of the gag can’t either — quickly backtracked. Shamefully, the Ministry of Justice says that it has no idea of how many super-injunctions are in force.
It seems that the select committee’s findings next month could be quite radical. It is likely to recommend that judges be urged to throw out cases that do not directly involve UK publications; MPs may look again at the casino culture of costs and conditional fee agreements. The “no-win no-fee” system was introduced in 1995 with the laudable aim of broadening access to justice. But rich litigants have created a situation where costs can be 100 times the damages awarded.
The committee’s report has been informed by the work of Index on Censorship and English PEN over the past year. The report we issue today will recommend a series of changes. We suggest that companies and associations with more than ten employees should, as in Australia, not be able to sue for reputation. We also want the scope of a public interest defence to be broadened beyond journalism, to encompass all areas of research and enquiry.
Of many absurd individual cases, one stands out. The science writer Simon Singh is being sued by the British Chiropractic Association after he accused it of promoting “bogus treatments”. Singh has fought a dogged and high-profile campaign. But for every one of him, dozens of individuals are bullied into silence.
Shifting the balance towards investigation and away from secrecy has nothing to do with invasions of privacy and long-lens cameras. It is now exceedingly hard for scientists to make reference in academic works to drug trials, for fear of multinational manufacturers destroying them in the courts.
One man who runs a patients’ website was threatened with legal action after posting a comment that a treatment he had tried for ME had not worked. He had to take down his observation. And a journal was threatened after writing a negative review about a polygraph lie detector. Consumer programmes, such as the BBC’s Watchdog, constantly have to tone down comments about goods.
This is not a battle between a media elite and a legal elite. In an age where everyone is a self-publisher, it affects a broad spectrum of society. We also highlight an attempt by Sheffield Wednesday FC to sue individuals who had posted negative remarks on a fans’ message board.
The case that enraged America is that of Rachel Ehrenfeld, who was sued for libel in London by a Saudi, Khalid Bin Mahfouz, over allegations of links with terrorist groups. Her book, Funding Evil, was not published in the UK but 23 copies sold over the internet were shipped here. She refused to recognise the jurisdiction of the court and was ordered by Mr Justice Eady to pay £130,000 in costs and damages. Thus began in the US the battle for what came to be known as “Rachel’s law”. This weekend it was revealed that US publishers have written to MPs threatening to abandon sales of newspapers and magazines in Britain because of the fear of libel.
All civilised societies need libel laws. People are entitled to redress when maliciously and falsely impugned. But Britain’s laws are not equipped for 21st-century mass and immediate communication. Our laws pose a direct and deadly threat to free expression and the right to know.
John Kampfner is chief executive of Index on Censorship and author of Freedom for Sale
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It was an excellent launch and the topic of libel with its tangential problems are even more acute than was highlighted today with the publication of this well researched report. John Kampfner, his team and English PEN have done an admirable job and made some commendable and radical recommendations on a very difficult subject, albeit strongly biased in the publishers favour.
Nevertheless, I do wish I spoke at the launch to highlight a few problems they may have overlooked. Firstly, from my own experience, abolishing the Duke of Brunswick rule without qualification is misguided, particularly in the age of the internet. The internet has actually made it more relevant than when it was first introduced in 1849.
I speak from my own dreadful experience. It is difficult for me to explain the problem with this without going into detail about my own personal story and how I ended up being defamed and libelled in nearly every British newspaper, their websites and even worldwide databases, after the libellous articles were syndicated by British publishers to my home country, America. My story in detail, submitted as a memoranda, can be found on the Parliamentary Culture, Media and Sport Select Committee’s website page for their Press Standards Inquiry.
My experience is that there needs to be some provision to qualify the archived articles, as eloquently detailed by The Times Newspapers in their memoranda to the Committee. I am sure Alastair Brett will not mind my copying and pasting his excellent proposal below:
“This would basically mean that archival media websites would be protected under the law of qualified privilege, subject to the newspaper being ready and willing to publish, “in a suitable manner, a reasonable letter or statement by way of explanation or contradiction”. This would enable people, who were being dogged by an old article, which maybe long out of date because facts had changed and time marched on, to get the article updated and new salient facts put onto the database alongside the old article. This could be done by an updating letter or statement by way of explanation or contradiction being posted alongside the old article or easily linked to it.”
This is necessary, otherwise people like me will be perpetually defamed and libelled on newspaper websites, long after the allegations may have been withdrawn or disproved, with no follow up article for ‘privacy’ reasons. This is unjust. Then there are those that are removed and then reappear. In my case, most of the articles as first published in the newspaper were not actionable because they were based on a court report that was most unfortunately made up with either false evidence or trumped up allegations.
Another matter I wish I had raised today at the launch is the rather obstinate refusal of the British press to provide rights of reply in the first instance. This is what the American media does with aplumb, acknowledging the abuses that can occur with free speech under the First Amendment. As an American, I can not adequately express my shock and dismay at the refusal of respectable British newspaper to give me a right of reply.
This would avoid many a libel claim and their associated costs. British publishers please take note. It is a simple and cost free remedy. On the subject of damages, I disagree with the proposed £10,000 cap. It will generally be grossly insufficient for the pain and suffering caused by libel in the mostly sensational English press. Maybe on a blog, but not for libel in the press. I strongly disagree with your second recommendation and that the motive of most people who sue for libel is money. Having sat in on many a libel trial, I can categorically say this is not true. We are not all libel tourists.
I have more to say about proving publication and using the human rights ‘privacy’ Article 8 to get private libel court hearings, sealed court files and apparently ‘super-injunctions’. It is truly a dreadful state of affairs.
My libel claims have been hijacked by a few legal professionals out to develop an unjust privacy law that is being intentionally misapplied to protect the reputations of the undeserving. I am not referring to Max Mosley’s claim, which I thought was a just application of Article 8 for a gross infringement of his privacy, as upheld by public opinion. Mr. Justice Eady did not deserve the sensational defamation he was subjected to over this.
I do not think any other country in the world would have allowed their press to get away with what was done to Max Mosley in the name of freedom of expression and the subsequent character assassination of Mr. Justice Eady. It was not just offensive, it was abusive. In America, I believe an equivalent publication would have been slapped with a huge fine.
Let the debate begin.
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