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By John Kampfner / 10 November 2009
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 SaleTags: English PEN | Index on Censorship | John Kampfner | libel reform | the libel report