The creation of this new law has not been an easy process. The Libel Reform Campaign launched on 9 December 2009, bringing together Index on Censorship, English PEN and Sense About Science. We had all identified a simple problem: English libel laws were silencing legitimate criticism and debate — not just in the UK but internationally. London’s High Court was seen as the place to come to silence opponents and critics, whether you were a South African snake-oil salesman or a Saudi sheikh.

Each organisation had already been alarmed by the use of libel laws in England and Wales to silence free speech.

The movement galvanised around the case of Simon Singh vs the British Chiropractic Association. This case, involving the popular science writer’s critique of what he now famously described as the “bogus” claims of alternative medicine, brought the UK’s energetic sceptic community into the fold. Over 100 civil society groups signed up. Novelists, journalists, lawyers and comics — especially comics — also joined. At the same time, English PEN and Index on Censorship had been working on a year-long study on the effects of English libel law on chilling free speech at home and across the globe. The Free Speech For Sale report kicked off a national debate on the impact of these archaic laws.

In March 2010, some of the biggest names in comedy, including Shappi Khorsandi, Tim Minchin and Dara Ó Briain gave their time to perform at the Big Libel Gig fundraiser in London.

An awful lot has happened since that benefit gig. Sheikh Khalid Bin Mahfouz, a serial libel tourist, has died. Mr Justice Eady, the High Court judge at the centre of some of the most contentious libel cases of recent times, has retired. Barack Obama signed the SPEECH Act, a US law specifically designed to protect Americans from London libel rulings. And the Chiropractics lost their case against Singh.

But what did not change was the remarkable loyal support of the thousands of libel reform supporters at home and abroad.

In advance of the 2010 UK election, tens of thousands of people wrote to their MPs telling them to support reform of the libel laws. As a result, all three main parties in the UK pledged to change the law.

When the Conservative-Liberal Democrat coalition government was formed by David Cameron and Nick Clegg after that election, a new defamation bill was one of the few issues both parties agreed on.

It would have been easy then for the 60,000 libel reform supporters to feel that their job had been done, and that now it could be left to the politicians.

But this never happened. Every time there was even a slightest threat to the process of reform, supporters mobilised, often without prompting.

The Libel Reform campaign can be seen, perhaps, as the first successful political campaign of the social media age. Bloggers and tweeters got involved and stayed involved. The #LibelReform hashtag was never dormant.

It was also a good example of parliamentary policy making. Though at times progress seemed slow, the bill went through rounds of scrutiny in an open and transparent manner, with politicians (for the most part!) working together for the common good.

The new law protects free speech. There is a hurdle to stop vexatious cases. We now have a bar on libel tourism so non-EU claimants will now need to prove that harm has been done here. For the first time there will be a statutory public interest defence that will ask defendants to prove they have acted “reasonably” (a better test than the more burdensome Reynold’s test of responsible publication). There is also a hurdle to stop corporations from suing unless they can prove financial harm.

The fight for free speech continues, but today Index would like to thank our partners and supporters for what has been an incredible three-and-a-half-year adventure.

Padraig Reidy is Senior Writer at Index on Censorship. @mePadraigReidy

The post Victory for free speech as libel bill passes appeared first on Index on Censorship.

At a debate in the House of Commons on Tuesday 16 April 2013 the Government rejected attempts to reform the libel laws to limit companies’ ability to use sue individuals. The reform would have asked companies to show they had been harmed before they would be allowed to take it case. It would also have put the Derbyshire principle, which prevents public bodies from suing individuals for libel into law, and would have extended this principle to private companies performing public functions. Labour pushed the Government on this clause and forced a vote which the Government won 298 to 230.

But Minister for Justice Helen Grant MP said the Government would “actively consider” amendments to the Defamation Bill that would require corporations to show financial loss before they can sue for libel, following pressure from Shadow Minister for Justice Sadiq Khan MP. The Defamation Bill will be debated in the House of Lords on Tuesday 23 April.

Kirsty Hughes, Chief Executive, Index on Censorship: “It is a very unwelcome blot on an important bill that the Government voted to allow corporations to continue to pressurise and sue in ways that chill free speech”

Tracey Brown, Sense About Science: “We are pleased that so many MPs recognise the need for corporations to show actual financial harm and grateful to the MPs who worked for this. While it is deeply disappointing that the corporations’ clause has been removed, their efforts have at least led the Government to concede that this should be revisited in the Lords. It cannot be right that the court is not asked to consider whether companies have faced loss, or are likely to, before a case can go ahead. It cannot be right that citizens can’t criticise delivery of public services whether by private companies or by the Government.”

Jo Glanville, Director, English PEN: “The Government needs to do more than “actively consider” amendments.  Ministers in the House of Lords should now table an early amendment, requiring corporations to show financial loss before they sue.  We’re depending on the Lords now to deliver the reform that all the parties signed up to. It’s essential that companies are no longer allowed to exploit libel law to bully whistleblowers into silence. This has always been a key demand for the campaign.”

Simon Singh, defendant in British Chiropractic Association v Singh: “The majority of the cases that galvanized public support for libel reform involved corporations, so the final Defamation Bill must include a clause that limits the powers for corporations to bully their critics into silence. The proposal on the table is reasonable, modest and fair. Ignoring this proposal on corporations would leave the door open to further abuses of libel law by those who want to block the public’s access to information concerning everything from consumer issues to medical treatments.”

The post Government chooses business interests over citizens appeared first on Index on Censorship.

At the same time as the Lords voted through the Puttnam amendment, they also backed a sensible amendment that corporations need to show direct financial harm before they can bring a libel action. The Libel Reform Campaign argued for this amendment which was tabled by the Labour party. As Index has argued before our libel laws have historically been about protecting reputation due to its part in preserving psychological integrity. Corporations don’t have feelings, so why should they be able to sue for libel?

Edward Garnier QC MP, a practising libel lawyer, has tabled an amendment to remove House of Lords amendment 2 from the Defamation Bill. If passed, it will allow corporations to sue for libel regardless of whether or not they have suffered financial harm. It would be a retrograde step and damage the bill. Labour has said they will oppose Garnier’s motion, but with support from MPs from the Conservative and Liberal Democrat parties his motion is likely be carried.

Another important amendment has been tabled by Conservative MP Sir Peter Bottomley, backed by Labour MP Paul Farrelly (who is also Chair of the All-Party Group on Libel Reform) to strengthen the public interest defence. The new public interest defence the government tabled in the House of Lords will be a significant improvement on the current complex and unpredictable law. However, its test of ‘reasonable belief’ is likely to lead to prolonged and costly arguments over a defendant’s state of mind (their belief) and requests from claimants for disclosure so they can prove malice and therefore defeat the test. Sir Peter Bottomley’s amendment would change “the defendant reasonably believed” to “the defendant reasonably decided”, this would significantly clarify the defence.

Today will be an important day for the Defamation Bill. The House of Commons could strengthen the Bill to give us a genuinely reforming Bill, or water it down in a direct challenge the Lords.

You can sign the Libel Reform Campaign’s petition here: libelreform.org

The post Will the government allow corporations to sue individuals for libel? appeared first on Index on Censorship.

Blogger Jacqui Thompson is now £25,000 poorer after losing a libel action against the chief executive of Carmarthenshire county council, Mark James. The judge found the posts on her Carmarthenshire Planning Problems blog to be defamatory and that she was engaged in an “unlawful campaign of harassment, defamation and intimidation targeted against Mr James and other council officers”.

Yet while Thompson paid for the case out of her own pocket, the ratepayers of Carmarthenshire paid for the chief executive’s libel action. In these straitened times, is it really fair that taxpayer’s money is being used to fund a libel case?

Carmarthenshire council is not alone. South Tyneside council is paying for its chief executive and council leader to bring proceedings against one of its own councillors. In South London the Durand Academy, a primary school, has on multiple occasions funded libel claims. This is a live debate with the government’s Defamation Bill (the first wholesale reform of our archaic libel law since 1843 ) currently passing through parliament after a long fight by the Libel Reform Campaign. An amendment tabled in the House of Lords by the Labour party, with support from influential Tory Peer Lord McWhinney and Liberal Democrat Peer Anthony Lester will (if passed by the Commons) block corporations and public bodies from suing individuals for libel, unless the libel has caused “substantial financial harm”. However an important loophole remains.

Public bodies themselves cannot sue for defamation. Derbyshire county council vs. Times Newspapers Ltd (1993) rules out public bodies from suing for libel. Lord Keith’s judgement makes clear the importance of “uninhibited public criticism” of democratically elected and public bodies.

The remaining loophole is the judgement does not prevent public bodies from using taxpayer’s money to fund libel actions on behalf of their staff.

In the Carmarthenshire case, Mr Justice Tugendhat reiterated the importance of the bar on public bodies suing directly, and emphasised the greater latitude members of the public had in criticising public bodies, but did not believe that allowing councillors or officers of a local authority to sue for libel would infringe the right to freedom of expression. “The decision of the House of Lords is binding on me. But in my judgment there is nothing in the suggestion that it is contrary to Art 10 that a member or between officer of a local authority should be able to sue for libel,” he said.

He also refused to restrict the ability of public bodies to use taxpayer’s money to pay for libel actions on behalf of their employees saying that such indemnities needed to be challenged: “There are procedures by which the grant of an indemnity by a council to an employee in respect of the costs of litigation can be challenged.”

Yet the procedures to challenge are complex and only relate to whether the local authority is funding the libel action to circumvent the Derbyshire principle. The default position in law established by Mr Justice Sullivan in Comninos vs Bedford borough council is that councils can fund libel actions on behalf of their staff – unless challenged. Local bloggers can now find themselves sued by a council employee backed with the full financial weight of the local authority, and yet will only know whether this is legal or not if they challenge this funding separately. It’s hard to see how any blogger or citizen critic could fund such a challenge unless they have very deep pockets indeed.

These indemnities have a corrosive effect on local democracy. Local authorities, sensing the controversy over using taxpayers’ money to sue their own citizens, are not transparent about the costs of these claims.

I tabled a freedom of information request to Carmarthenshire to find out how much it had spent on the libel action. It refused to disclose this information, citing an exemption. From a wider request, I did find out that the council spent £891,433 in legal fees in 2012. This is the same county council that is making 450 people redundant and closing down training services for disabled people.

The defamation bill will continue the bar on public authorities directly suing their critics for defamation. Yet, without action to stop them directly funding libel actions on behalf of councillors or officers, the power and resources of the state can still be used to silence citizen critics.

It is self-evident that public servants should be able to sue for defamation if directly and unfairly criticised, but it is not fair to expect taxpayers in this period of austerity to pick up the bill.

Mike Harris is head of advocacy at Index on Censorship and the vice-chair of Lewisham council

The post Should public servants be able to use public money to sue for libel? appeared first on Index on Censorship.

Yet, in an unlikely twist of fate, the Ethiopian authorities are not the only ones pursuing him in court: Elias Kifle’s name appears with some regularity in the cause lists of the London libel courts. Although his website is run from the US, publishes to an Ethiopian audience on matters concerning Ethiopia, the London courts have warmly welcomed those who wish to sue him for libel. Prime amongst his pursuers has been Ethiopian-born billionaire, Sheikh Mohamed Al-Amoudi.

Mr Al Amoudi, a businessman so keen to preserve his reputation that his Wikipedia entry has been flagged up as inappropriate because it has been edited by people who have a “close connection” with him, has been granted two default judgments against Elias Kifle: a £175,000 award made in 2010, and a £180,000 award made last week.

Being based in the States and lacking the financial means to hire lawyers, Mr Kifle chose not to defend either of these claims. Last week’s case was allowed to proceed because of Mr Al Amoudi’s business activities and reputation among Ethiopians in London, five of whom gave evidence as having read the piece in question; the fact he is a “frequent visitor” to London; and the fact that Mr Al Amoudi’s children were educated in England. The judge, Mr Justice Eady, does not appear to have considered whether it is even remotely feasible for an Ethiopian journalist exiled in the US and who runs a news website on a shoestring budget to obtain the services of libel defence lawyers. Instead he cites Kifle’s rude responses to Al Amoudi’s lawyers as evidence of Kifle’s intent to wage a “campaign of denigration … without ever having to face [Al Amoudi] in court”.

In many ways, there is nothing new about this — readers of this website will be familiar with the Ukrainian website being sued in London by a Ukrainian oligarch over articles published in Ukrainian; and a few years ago my organisation, the Media Legal Defence Initiative, had to call on the pro bono services of media lawyer Mark Stephens to neutralise a London libel threat against the Nepali Times (which, for the avoidance of doubt, publishes from Kathmandu, Nepal). In both these cases, as in Kifle’s case, the claimants could prove some connection to London — not surprising since most of the world’s nationalities are represented there and the publications in question were accessible online.

But in all these cases, the courts have completely failed to appreciate the difficult position of foreign defendants. Judges don’t appreciate the real chilling effect exerted by the financial cost of defending a libel suit in London (estimated in an Oxford University study reporting as more than a hundred times more expensive in London than elsewhere in Europe). Why should a defendant in the US, Nepal or Ukraine be expected to rack up hundreds of thousands in legal fees (assuming for the moment they have that kind of money in the first place) when they are unlikely to recover this even if they win? And is it really that surprising that an exiled journalist twice sentenced to life in prison displays a certain amount of “scorn” for lawyers and legal proceedings (Mr Justice Eady’s disdain of Elias Kifle and his cavalier attitude to Al Amoudi’s lawyers is evident)? Even if they had a choice — which they do not, because they have no money — many defendants in these matters will prefer to suffer a default judgment, even if that means they will not be able to set up business in London in the future, over certain bankruptcy even if they win a case.

Over the last few years, libel tourism cases have continued to pop up despite international outrage. The US has adopted federal legislation barring the enforcement of English libel judgments — and even allowing for counterclaims — and last year, the Council of Europe adopted a recommendation on libel tourism noting that “[p]rocedural costs may discourage defendants from presenting a defence thus leading to default judgments.”

If the Defamation Bill goes through, the end of the phenomenon of libel tourism may be in sight. Under the new regime proposed by the bill, currently in its final stages in Parliament but in danger of disappearing in the Leveson maelstrom, libel proceedings against foreign defendants cannot proceed unless London is “clearly the most appropriate place in which to bring an action in respect of the statement”. Ministers have made it clear that this means judges must take into account the procedural (un)fairness of requiring a foreign defendant to travel thousands of miles and/or engage lawyers they cannot afford. Let us hope judges will apply this in the spirit it is intended — and let’s hope the bill is enacted; it would mean Elias Kifle’s name will appear in the London cause lists no more.

Peter Noorlander is CEO of the Media Legal Defence Initiative, an organisation that defends journalists’ rights and provides legal aid to journalists around the world

The post London libel ruling against Ethiopian dissident shows urgent need for reform appeared first on Index on Censorship.

In 1999, as the Tour de France peloton made its way torward’s the summit of Alpe d’Huez, at 1,850 metres one of the race’s most feared climbs, leader Lance Armstrong cycled alongside young French rider Christophe Bassons. Bassons had been making a name for himself by speaking out against doping in the sport, and Armstrong was not happy with him.

According to Bassons, Armstrong told him “it was a mistake to speak out the way I do and he asked why I was doing it. I told him that I’m thinking of the next generation of riders. Then he said ‘Why don’t you leave, then?’”

Armstrong never denied the incident, saying that he felt Bassons’s criticisms were bad for the sport. Ostracised by his fellow riders, Bassons quit the Tour, and gave up pro cycling shortly afterwards. The tone was set for Armstrong’s seven-win reign over the Tour, a reign we now know was characterised by systematic doping, bullying, denial and libel cases, real and threatened.

Lance Armstrong boasted of winning defamation cases over doping allegations – Demotix

Professional cycling, and particularly the Tour, has probably never been “clean”, though current champion Bradley Wiggins and his Sky team insist that they have ushered in a new era in the sport. The demands the Tour makes on the human body make doping very difficult to resist. 1910 Tour winner Octave Lapize famously turned to tour organisers in a particularly brutal climb and shouted “Vous êtes des assassins! Oui, des assassins”. Even before and certainly since then, riders used a variety of substances to get them through the race, or just to the end of the day.

The 90s in particular were a dark time, with 1998′s Festina affair exposing some of the sport’s major teams as complicit in doping and almost bringing an end to that year’s tour as teams abandoned the race in protest. That year’s winner Marco Pantini was the subject of rumours for much of his career. He was to die alone in a hotel room in 2004.

In short, no one should ever be surprised if allegations about doping in cycling are made. And everyone involved i the sport has a duty to take these allegations seriously.

Instead, allegations against Armstrong and doping were held as an affront to the “cycling family”, and critical journalists and riders were silenced. The Sunday Times’s David Walsh, co-author of L.A. Confidentiel, an early exposé of Armstrong, was treated as a pariah. Walsh told Press Gazette how fellow tour journalists went so far as to be unwilling to travel in the same car as him. In 2006 Walsh’s employers settled a £600,000 libel case to Armstrong, who has now been disgraced by the US anti-doping agency’s report into cheating at Armstrong’s US Postal team. (the Sunday Times is reported to be looking into suing Armstrong for fraud).

Armstrong’s former masseuse Emma O’Reilly, a major source for L.A. Confidentiel (which has never been published in English) also faced legal action. Armstrong went on a litigation spree, boasting “I think we’re 10-0 in lawsuits right now” in 2006.

Bradley Wiggins’s Team Sky hopes to herald a new era of drug-free cycling – Demotix

All this would seem embarrassing to recount now. And one would imagine that “the cycling family” is suitably chastened.

One would be wrong. The current head of the Union Cycliste Internationale, Pat McQuaid, and his predecessor Hein Verbruggen have not just shirked any responsibility for the Armstrong era, they have decided to sue journalist and former rider Paul Kimmage, a longstanding critic of doping, for libel. McQuaid recently told Scottish rider David Millar, who himself was banned for doping, that there was no reason for the UCI to feel guilty: “How could we be apologetic? The UCI is not responsible for the culture of doping.”

The peloton of Bradley Wiggins and Mark Cavendish is, we are told, and we hope, a very different place to the peloton of Lance Armstrong and the US Postal doping machine. But the UCI has chosen to continue with the same culture that led to this point in the first place. It’s time to stop shooting the messengers.

Padraig Reidy is News Editor at Index on Censorship

Read more here:

How fear of privacy and defamation laws made Jimmy Savile untouchable
Five ludicrous libel cases
Last chance to sign our petition to reform libel laws that stifle debate, curtail criticism and even endanger lives

The post Lance Armstrong and cycling’s libel shame appeared first on Index on Censorship.

Disabled critics of ‘fit for work’ scheme have their online support forum axed

Libel threats from Paralympic sponsors Atos Healthcare forced public disability support forum CarerWatch to close in August 2011, after users criticised the company’s record in assessing government disability benefits. The private corporation threatened the internet host with legal action if the site was not plugged. Frances Kelly, the founder of CarerWatch, said at the time: “The sudden disappearance of a support group has caused a lot of distress and fear. Some (members) are ringing us in tears.” After public outcry, CarerWatch is now back online.

Tennis player sues press for reporting on his losing streak

In April 2008, Robert Dee was branded “the world’s worst tennis pro” by the press, after he lost 54 consecutive matches in straight sets in his first three years on the international professional tennis circuit. Whilst Dee’s performance was the worst ever run in the world ranking ITF / ATP tournament’s history, his representatives secured more than 30 settlements from the global media in payments and apologies. Dee lost once again in April 2012 when The Telegraph upheld its comments, becoming the only publication to contest Dee’s claims of defamation and leaving the courtroom victorious.

Icelandic libel tourists take Danish tabloid to UK courts

Danish tabloid newspaper Ekstra Bladet was sued in London by Kaupthing, an investment bank in Iceland, over articles that criticised advice the company had given to clients about tax shelters. Kaupthing claimed UK jurisdiction because some of the critical articles published online had been translated into English and Sigurdur Einarsson, chairman of the bank and subject of some of the articles, was resident in London. Ekstra Bladet was forced to settle the case before it went to trial. The newspaper carried an apology on its website for a month, paid substantial damages and costs to Kaupthing. Editors have since reconsidered their policy of providing English translations of their articles online.

Heart doctor risked losing house in headache-inducing case

NHS cardiologist Dr Peter Wilmshurst battled a four-year legal process after refuting the credibility of a product by US company NMT Medical claiming to eliminate migraines. The medical device manufacturer’s product (pictured) claimed to help by closing small holes in the heart, but when Wilmshurst’s self-designed clinical trial, called MIST, failed, he suggested in a TV interview that there was a fault with the product. Wilmshurst suffered serious financial loss in defending his statement, and the legal action against him only ended when NMT went into liquidation in April 2011.

Spinal trap

Science writer Simon Singh celebrated National Chiropractic Awareness Week by writing an article for the Guardian newspaper critical of the alternative treatment, which he said made “bogus” claims for healing without a “jot of evidence”. The British Chiropractic Association decided to sue, and a long and bitterly fought case followed, with the science of alternative medicine coming under scrutiny. The BCA eventually dropped the case, after judges decided that the article was written from “honest opinion”. But the writer remains considerably out of pocket.

Daisy Williams is an editorial intern at Index on Censorship

The post Five ludicrous libel cases appeared first on Index on Censorship.

As over 50 international human rights NGOs have pointed out in a letter to Prime Minister David Cameron today, a damning report by the UN Human Rights Committee on English libel law spurred the calls for action to change the law. But with the government’s defamation bill merely codifying important sections of the law in statute, it remains to be seen whether they will deliver on the commitments made by the coalition parties at the last general election. The Libel Reform Campaign is calling for the House of Lords to make substantive amendments to the bill, in particular a new public interest defence and amendments to the “responsible journalism” defence; a new clause to strike out actions by corporations, an amendment forcing early strike out of trivial cases and improvements on regulations covering the internet. It’s time to get this right.

We need a public interest defence – now
Without a public interest defence in the Bill, this legislation will fall far short of initial expectations. Previous libel defendants Simon Singh and Dr Peter Wilmshurst have told the campaign that the provisions in this Bill would have done nothing to protect them in their cases. Clause 4 of the bill as it stands is merely the codification of a version of the existing Reynolds “responsible journalism” defence — it is not a public interest defence. In the Reynolds judgement (the 1999 House of Lords judgment in Reynolds vs Times Newspapers Ltd), Lord Nicholls suggested 10 criteria that could be used to measure whether a publication had been responsible. Although these criteria were meant to be illustrative they have come to be seen as a list of requirements to be satisfied. While a large newspaper group may be able to satisfy these criteria (albeit at huge expense), for bloggers, scientists or NGOs this is simply not practical. A better defence for large media organisations can be created by updating the bill to reflect the latest case law, in particular the summary by Lord Justice Brown in Flood vs Times. This should be included in the Bill either by deleting the entirety of the existing Clause 4 to keep the existing common law position which is stronger than the position in the Bill; or, more suitably (to create legal certainty) by amending the existing Clause 4. This amendment would at least give large media groups a reliable “responsible journalism” defence.

Last chance to demand Libel Reform. England’s libel laws are unjust, against the public interest and internationally criticised. Join 60,000 others calling for change. Sign here.

However, a “responsible journalism” defence will not protect the bloggers, scientists and NGOs who have driven the Libel Reform Campaign. Some MPs have responded to calls for a public interest defence, rather than just a responsible journalism defence. In the bill Committee, Rob Flello MP (the Labour party’s lead on this issue) proposed a strong public interest defence based around proposals from the Libel Reform Campaign for the government to use. A variant of this defence was adopted by Liberal Demoract Simon Hughes MP at report stage before the Bill went to the Lords. Such a public interest defence has found defenders inside the Conservative party including Rt Hon David Davis MP and Sir Peter Bottomley MP.

This public interest defence, to be inserted in the Bill as a new clause, would protect genuine public interest statements made in good faith. The clause would require that statements that meet a public interest threshold, which cannot be shown to be substantially true (such as claims around scientific research), are promptly clarified or corrected with adequate prominence. Those publications that do not drag their heels in publishing a prominent correction or clarification would be protected from having to defend a libel action. This gives bloggers, NGOs and scientists latitude to publish in a responsible manner on matters of a public interest.

The Libel Reform Campaign is looking to the second reading in the House of Lords for the government to adopt such a public interest defence.

Action on corporations
As pointed out by Index on Censorship, if defamation is about protecting the psychological integrity of individuals, why should corporations be able to sue?

The Libel Reform Campaign is lobbying parliamentarians to adopt a new clause on corporations, preventing them from using the law of defamation to sue individuals and requiring them instead use alternative laws such as malicious falsehood (which has a higher threshold of harm), the Business Protection from Misleading Marketing Regulations 2008 (BPRs), or a freestanding remedy of obtaining a declaration of falsity. The Labour party pursued this point during the Bill Committee, the Liberal Democrats made a manifesto commitment to do this at the last election, and many Conservative parliamentarians have called publicly for a bar on corporations suing individuals (or a higher threshold to initiate such an action). We expect the House of Lords to consider this during the second reading.

Striking out trivial cases
In recent years, the courts have allowed trivial or vexatious cases to proceed at huge expense to both the claimant the defendant, even where there has been little chance of the claimant winning their case. The Ministry of Justice believes that “existing procedures will suffice” under rule 3.4 of the civil procedure rules to strike out such cases at an early stage. But this has clearly not been borne out in legal practice. If the government’s intention is to allow for early strike out, then there must be an amendment telling judges to strike out claims that fail to surmount the “serious” (harm and extent of publication) hurdle.

President Barack Obama signs the SPEECH Act, which protects US citiizens from English libel law

Strengthening protections against “libel tourism”
In 2010, President Obama signed into law the US SPEECH Act protecting Americans from libel judgements made in the high court here. John Whittingdale MP, the chair of the Culture, Media and Sport Select Committee described this as a “national humiliation”. The current Bill does help prevent “libel tourism”, the phenomenon where international parties sue in the High Court in London rather than in a more appropriate domestic court.

But while the government’s Clause 9 is an improvement on the current position in law, we believe Subsection 13 (2) of Lord Lester’s Private Members’ Bill would be better, and should be added as an amendment to Clause 9 as it is clearer than the current “libel tourism” clause.

Lord Lester’s clause states:

No harmful event is to be regarded as having occurred in relation to the claimant unless the publication in the jurisdiction can reasonably be regarded as having caused substantial harm to the claimant’s reputation having regard to the extent of publication elsewhere

Internet regulations
This is a weak point of the bill. In recent years, internet intermediaries have received some protection from e-commerce regulations. Under these regulations, hosts do not have to remove material unless they are informed that it is “unlawful”. However, English law has not kept pace with these regulations. Section 1 of the 1996 Defamation Act (written in the internet’s infancy) involves a lower threshold for liability of intermediaries merely when a statement is “defamatory”. Unfortunately, Clause 5 of the current bill uses this out-dated threshold. The Libel Reform Campaign is also urging the government to publish the wider regulations on internet liability immediately. The government is currently intending to amend into the bill through a statutory instrument, giving Parliament a far more limited role in scrutinising these important regulations.

When the Bill is debated in the House of Lords, the Libel Reform Campaign hopes the government will signal its intention to bring forward amendments to the bill in light of the comments and tabled amendments from parliamentarians from all the main political parties. All three parties promised reform. Now is the time to deliver.

Mike Harris is Head of Advocacy at Index on Censorship

Last chance to demand Libel Reform. England’s libel laws are unjust, against the public interest and internationally criticised. Join 60,000 others calling for change. Sign here.

The post Libel reform: politicians must deliver on promises appeared first on Index on Censorship.

Prime Minister David Cameron
10 Downing Street
London, UK SW1A 2AA
Fax: +442079250918
cc. Deputy Prime Minister Nick Clegg
Ed Miliband, Leader of the Opposition

RE: Reforming English Libel Law

9 October 2012

Dear Prime Minister, Deputy Prime Minister and the Leader of the Opposition,

We the undersigned represent free expression and civil society organisations from across the globe. We welcome the UK government’s attempt to revise English libel law, but remain concerned that the legislation fails to deliver the reform that you promised in your election manifestos and in the May 2010 coalition agreement.

English libel law has been shown to have a chilling effect on free speech around the world. We believe that the Defamation Bill will address this in part by tackling libel tourism, where foreign claimants have brought libel actions to the English courts against defendants who are neither British nor resident in this country. However, the Bill as it stands would not have prevented any of the libel cases that we have seen over the last few years against journalists, scientists, doctors and activists who have spoken out on issues that are in the public interest.

We call on the government to include a strong public interest defence in the Defamation Bill to allow free and open debate in the UK and abroad.

In addition, restrictions must be placed on corporations to limit their ability to use libel law to bully and silence their critics.

The UN Human Rights Committee has warned that unduly restrictive libel law in the UK could have a negative impact on the right to freedom of expression worldwide. We believe it is of the utmost importance that the government delivers reform that protects freedom of speech both in the UK and abroad.

Yours sincerely,

Index on Censorship
Aliansi Jurnalis Independen/Alliance of Independent Journalists
ARTICLE 19
Association of Caribbean Media Workers
Association of Independent Electronic Media
Cairo Institute for Human Rights Studies
Canadian Journalists for Free Expression
Center for Media Freedom and Responsibility
Committee to Protect Journalists
Egyptian Organization for Human Rights
Freedom House
Hong Kong Journalists Association
Initiative for Freedom of Expression
International Federation of Journalists
Media, Entertainment and Arts Alliance
Media Foundation for West Africa
Media Institute of Southern Africa
MISA Angola
MISA Botswana
MISA Lesotho
MISA Malawi
MISA Mozambique
MISA Namibia
MISA South Africa
MISA Swaziland
MISA Tanzania
MISA Zambia
MISA Zimbabwe
Observatorio Latinoamericano para la Libertad de Expresión – OLA
Pacific Islands News Association
Pakistan Press Foundation
Palestinian Center for Development and Media Freedoms – MADA
Public Association “Journalists”
Reporters Without Borders
South East European Network for the Professionalization of the Media
World Association of Newspapers and News Publishers
World Press Freedom Committee

Albanian Helsinki Committee
Antigua and Barbuda Media Congress
Belarusian Human Rights House
Center for Civil Liberties, Ukraine
Centre for the Development of Democracy and Human Rights, Russia
Center for National and International Studies, Azerbaijan
English PEN
Freedom Files, Russia
Foundation of Regional Initiatives, Ukraine
Georgian Young Lawyers’ Association
Human Rights Club, Azerbaijan
Helsinki Citizens’ Assembly – Vanadzor, Armenia
Human Rights Monitoring Institute, Lithuania
International Partnership for Human Rights, Belgium
Netherlands Helsinki Committee
Norwegian Helsinki Committee
Nota Bene, Tajikistan
Promo LEX Association, Moldova
Public foundation Golos svobody, Kyrgyzstan
Sense About Science
Ukrainian Helsinki Human Rights Union

Last chance to demand Libel Reform. England’s libel laws are unjust, against the public interest and internationally criticised. Join 60,000 others calling for change. Sign here.

The post 60 international NGOs to UK government: Protect us, strengthen libel law reforms appeared first on Index on Censorship.

Major companies have alternatives to litigation, says Mike Harris. With PR teams and big advertising budgets they can easily counter false claims or unfair criticism

This article was originally posted at Independent Voices

Companies can’t cry. In any other context this would be a statement of the obvious, but in English libel law, this is questionable. Historically, our libel laws have been about protecting the reputations of the rich and powerful. Now, major corporations use them as part of their media strategies, paying huge sums to advertise and huge legal fees to bully their critics. As companies take on the running of public services, this raises serious questions over the ability of citizens to criticise services that they pay for. Fair play say some. But libel laws are about protecting the psychological integrity of individuals who find themselves defamed. Corporations don’t have feelings — so why should they be allowed to sue?

This isn’t an academic question, as Dr Peter Wilmshurst found out. For four years he battled with now bankrupt US corporation NMT Medical in a case that nearly cost him his career and his home. Wilmshurst, a senior NHS cardiologist, made critical comments at a scientific conference on an NMT product which was designed to close a specific hole in the heart. Over the four years of the case, patients continued to have the product implanted in their hearts. In some cases, they needed extensive surgery to have them removed. If his concerns had not been silenced, doctors might not have recommended this treatment.

Peter Wilmshurst nearly lost everything in a libel case

Olympic sponsor ATOS has also used our libel laws to silence its critics. CarerWatch, a closed forum has attracted critical posts on the work of ATOS in its state-funded testing of whether disability claimants are fit for work. In August last year, their lawyers sent a legal threat to myfreeforum.org which hosts the site. Myfreeforum.org, fearing an expensive libel action, pulled the plug. The founder of Carer Watch Frances Kelly told me “many members are very fragile and the sudden disappearance of a support group has caused a lot of distress and fear. Some are ringing us in tears.” In a statement the company said: “While we fully support the right of people to express their opinions, it is our duty to protect the reputation of our employees and company against false and malicious allegations. In such circumstances, we will look to take any necessary steps to ensure that these unsupported claims are addressed swiftly and appropriately.” After a public outcry, CarerWatch is now back online.

Robust criticism of the work of a corporation carrying out a public function paid for by taxpayers should be protected, but isn’t. The Derbyshire principle which in English law prohibits the state for suing its citizens is slowly being undermined. As Lord Keith said in the judgment: “It is of the highest public importance that a democratically elected governmental body, or indeed any governmental body, should be open to uninhibited public criticism”. Yet, local councils alongside corporations as “non-natural bodies” have continued to use our libel laws to sue their critics. Carmarthenshire county council is so broke it’s switching off 5,000 street lights but has found the money to sue a local critic Jacqui Thompson for libel. Meanwhile as South Tyneside council makes £35m worth of cuts including closing the main local centre for dementia care, it admits it has used in excess of £75,000 worth of public money to launch a legal action by the council’s leader Iain Malcolm and fellow councillors against a local blogger.

Corporations have alternatives to libel. With PR teams and big advertising budgets they can easily counter false claims or unfair criticism. The law of malicious falsehood and recent regulations protecting firms from misleading marketing all protect firms from deliberate falsehoods from rivals, or those with a grievance. And it’s unclear as to why companies can claim libel damages at all. Damages are meant to compensate for psychological damage. Companies don’t have feelings, so shouldn’t get damages. Moreover, no damages could ever compensate for real corporate damage – if a newspaper defames Apple for suggesting it operates sweat shops, costing the company billions of dollars, does anyone seriously believe it ought to compensate Apple in full – rather than printing an apology?

Luckily, there’s an opportunity to stop this. The Defamation Bill is currently passing through Parliament and in October the House of Lords has an opportunity to amend the Bill. Former Justice Secretary Ken Clarke was adamant that corporations ought to be able to sue for defamation, but post reshuffle the Libel Reform Campaign (English PEN, Index on Censorship and Sense About Science) believe the new Ministerial team may be more open to reform. There is cross-party support to block corporations suing individuals with Conservative MPs such as Peter Bottomley and David Davis, Liberal Democrats Tom Brake, Julian Huppert and Simon Hughes and Labour’s Sadiq Khan, Rob Flello and Paul Farrelly all questioning whether large companies really do need to resort to suing citizens.

In a world where McDonalds’ revenue is larger than Latvia’s GDP and Exxon Mobil’s bigger than Thailand’s, it’s becoming hard to justify the rule that states can’t sue citizens but corporations can. There’s much to praise in the Defamation Bill going through Parliament, but without action on corporations we may see yet another scientist or NGO risking everything in the High Court against a company that can afford to lose.

You can sign the Libel Reform Campaign’s petition here: libelreform.org

Mike Harris is Head of Advocacy at Index on Censorship

The post Corporations don’t have feelings, so why should they be able to sue for libel? appeared first on Index on Censorship.