Hermitage and her husband Stuart Middleton were driven from Silverdale Farm in Tanzania by threats and harassment. The court heard Megni’s brother Benjamin took possession of the farm following their departure. A defining factor in the ruling was the hostile coverage of Silverdale Farm by the IPP-owned newspapers. Mengi was ordered to pay £1.2million towards Hermitage’s legal costs.

Hermitage said today:

I set up my Silverdale Farm blog in 2009 to document our horrific experience in Tanzania, and to expose as a warning for others the corruption we encountered and our helplessness with no protection from the local Courts and officials.

To find myself then sued for libel in my own country, facing a claim of legal costs of £300,000 from Mr Mengi before the proceedings had even started, was itself frightening and oppressive.

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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.

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The High Court has given permission for an American hedge fund manager to serve disclosure orders on three US-based online publishers.

Earlier this month Mr Justice Tugendhat ruled that the operators of WordPress, Wikipedia and the Denver Post could be served with the forms, known as Norwich Pharmacal orders (NPO), in the US — by email.

The billionaire claimant, Louis Bacon, founder and chief executive officer of Moore Capital Management LLP, with offices in both the US and UK, was represented by 5RB barrister Matthew Nicklin, instructed by the London based law firm Schillings.

According to the Guardian newspaper, a spokeswoman from Schillings said that the case was brought in the UK high court rather than a US court, because Bacon had pursued a similar case against a UK-based website host, justhost.com, in 2010.

Bacon claims that the sites have published defamatory material about him, submitted by various anonymous users, including “gotbacon” and “TCasey82″.

Bacon, who was born in the US and owns residential properties in London, the Bahamas and in Colorado, is worth $1.7 billion according to the Forbes World’s Billionaires List, which lists his wealth at number 736 overall and at number 261 in the United States.

According to the Forbes entry, updated in March 2011, Bacon moved back from London to Long Island in New York, where he owns “luxury” properties, including 145-acre Robin’s Island in Peconic Bay. It reports he recently put his property in the Bahamas on sale at $35 million.

Bacon’s estate, Point House Lyford Cay, has proved a goldmine for scandalmongers. In 2010, 54-year-old Dan Tuckfield was found dead (from natural causes) in the financier’s hot tub and Bacon’s “unseemly slanging match” with his neighbour, fellow billionaire Peter Nygard has garnered a string of lurid headlines. In separate proceedings, the hedgefunder and the Canadian fashion mogul are suing each other in the Bahamas Supreme Court. The neighbours’ feud has been at the centre of much online speculation. During a police raid of Bacon’s estate officers confiscated speakers directed at Nygard’s property. According to the Tribune, a Bahamian daily newspaper, Bacon’s estate claimed the acoustic devices merely redirected noise emanating from Nygard’s property and the country’s Minister of National Security later denied speculation they were military grade ultrasonic speakers.

Bacon wishes to use the Norwich Pharmacal orders, named after a House of Lords case in 1974, to force the site publishers to disclose user names, addresses and IP addresses so he can pursue defamation proceedings.

In the judgment, available online, Mr Justice Tugenhat acknowledged: “The difficult question raised by this application is: can a defendant domiciled in the United States of America be served by means of email with a claim form issued in England?”

The judge, without disclosing details of the allegedly defamatory material, found Bacon’s case “passes the threshold of being a good arguable case in defamation” and concluded that civil procedure rules allowed him to order service on the US defendants.

But, he added: “In future claimants should put before the court evidence as to whether that method is permitted by the law of the country in which the claim form is to be served (or a good reason for not doing so), since if it is, service by an alternative method will be unnecessary.”

The Denver Post LLC, publishers of the Denver Post newspaper and its site, and Wikimedia Foundation, the publishers of Wikipedia, could not be reached for comment. Paul Kim, VP User Growth, Automattic, Inc., which publishes WordPress told Index on Censorship:

Our standard response to subpoenas is to forward them to the affected WordPress.com users and give them 10 days to decide if they want to attempt to quash the subpoena.

If they decide not to fight the subpoena, we will release the requested information as required by law.

Automattic has since confirmed that it has “not released any data and are requesting a US subpoena before doing so”.

In correspondence the Wikimedia Foundation said:

Per recent coverage of this issue in the Guardian, you will see that the Wikimedia Foundation has indicated it would comply with an order that is served in the US.  In this case, we have received this order in the US, and we will comply.  We do not typically recognise foreign subpoenas unless we determine there is a serious threat to life or the safety of an individual or group.

We’re not able to comment further on this or other legal situations, however we can say that we take legal matters seriously.  We will comply with requests to release information when we are legally required to do so.

The ruling is timely, as questions are raised about whether Twitter, based in the US, will disclose the identity of users who appear to have contravened the terms of numerous anonymous privacy injunctions obtained in UK courts.

Judith Townend is a freelance journalist and PhD candidate based at City University London. Her blog meejalaw covers digital media law

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httpv://www.youtube.com/watch?v=s1wjBFIl66w

Read the text of the bill here

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More later

In the meantime read Through the Looking Glass
Floyd Abrams counsel for some of America’s most celebrated first amendment cases examines how English libel law turns US protection for free speech on its head

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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.

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