In the Fifth Dame Anne Ebsworth Memorial Lecture the Rt Hon The Lord Hoffmann examines the evidence. Are foreign litigants exploiting our libel system?
The war in Iraq is these days much in the news. One of its most enthusiastic supporters of was Richard Perle, chairman of President Bush’s Defence Policy Board at the time it began. He was contemptuous of the reluctance of many European countries, notably France and Germany, to support the invasion. “The jealousy and resentment that animate the terrorists” he said “also affect many of our former cold war allies.” “I think Europe has lost its moral compass”. Of course he excepted the United Kingdom. About a fortnight before the war began, the New Yorker published an article by its well known correspondent Seymour Hersch, which alleged that Mr Perle was a principal investor in a company involved in defence procurement which stood to gain from his influence over American defence policy. Mr Perle was not pleased. Seymour Hersch, he said, was “the closest thing American journalism has to a terrorist.” He threatened to sue for libel. Not in the United States, because there Mr Perle knew that he was bound to lose. In the well-known case of New York Times v Sullivan the Supreme Court decided that the First Amendment, which protected freedom of speech and the press, prevents anyone who can be described as a public figure from suing for libel unless he can prove that the defendant was actuated by actual malice, that is, that he knew that what he was saying was untrue. It was obviously going to be difficult to prove this against Mr Hersch. So Mr Perle said that he proposed to sue in the courts of America’s ally the United Kingdom. He said he had already consulted a leading QC. Mr Perle’s political opponents were critical of his intention to sue in England. Why should a dispute between an American politician and a NewYork weekly be tried in London? They accused him of libel tourism. In the end, however, whether as a result of the advice he had received from his QC or for some other reason, Mr Perle did not sue. Instead, he said he would appeal to the court of public opinion. He would publish a dossier which would prove that Seymour Hersch was wrong. But no such dossier appeared. On 28 March 2003, while the bombs were still falling on Bagdad, he resigned as chairman of the Defence Policy Board.
Richard Perle had been an adviser to Mr Netanyahu, the leader of the Israeli right-wing Likud party and presently Prime Minister of Israel. He is a director of a several neo-conservative think tanks, including one called the American Centre for Democracy, which declares itself to “fight[s] for the freedom to expose and monitor threats to the national security of the U.S. and Western democracies.” Its principal director is Dr Rachel Ehrenfeld, who was born in Israel but lives in the United States. She has firm views on the Palestinian question and considers the British to be soft on terrorism. One of her articles on her web site is entitled “With friends like the Brits, the US does not need enemies.” Her main interest was, until she took up the question of English libel law, the funding of terrorism.
In 1993 she published Evil Money, an account of the way terrorism was funded from the trade in drugs. A reviewer in the New York Review of Books remarked that she had made a number of sensational claims without citing very much evidence, but she replied that the nature of the subject meant that her sources had to be confidential. Towards the end of 2003, after President Bush had declared the mission in Iraq to be accomplished, she published a book called Funding Evil, How Terrorism is Financed and How to Stop It. It contained allegations that a well-known Saudi businessman named Bin Mahfouz had contributed millions of dollars to Al Qaeda and other terrorist organizations. He and his family were said to have deposited tens of millions in the London accounts of terrorists implicated in the attacks on the US embassies in Kenya and Tanzania and to have funded Hezbollah and Hamas. It is hard to think of more serious allegations which could be made against an Arab doing business with the West. The book was not an international best seller but it appears that 23 copies were sold to persons in the UK by internet sellers like Amazon. In addition, a chapter of the book containing some of the allegations was put on the internet by ABCnews.com and accessed by people in this country. Mr Mafouz and his sons were known in financial and energy circles in London; they owned at least one house here and one of their business interests at the time of publication was an oil exploration company which had its headquarters in London.
Mr Mahfouz commenced proceedings for libel in London on 30 June 2004. Dr Ehrenfeld and her publisher were served out of the jurisdiction. She instructed English solicitors but did not acknowledge the proceedings. Instead, she started proceedings against Mr Bin Mahfouz in New York for a declaration that her allegations were not actionable under US law and that an English judgment against her would not be enforced. She said that Bin Mafouz –
both hides the truth of [his] acts behind the screen of English libel law and seriously chill legitimate and good faith investigation into his behaviour and links to terrorism.
The judge in New York dismissed the action on the ground that he had no jurisdiction over Mr Bin Mahfouz and his decision was upheld by the New York Court of Appeals.
As sometimes happens, the interest created by the libel action and Dr Ehrenfeld’s counter-suit, which was supported by amicus briefs from a number of prominent American media organisations, brought the book to the attention of people who would not otherwise have heard of it and she was able to publish a second edition which said on the cover “The book the Saudis don’t want you to read.” In a new preface she said:
Despite the enormous cost involved, I have decided to take it upon myself to challenge Bin Mahfouz and provide the UK court with evidence that he…[has] in fact supported Al Quaeda and Hamas.
She appears, possibly on account of the advice she received from her English solicitors, to have changed her mind about defending the action. As a result, it was undefended when it came before Eady J on 3 May 2005. It is perhaps worth pausing at this point and asking what defences would have been open to her on the merits or whether she could have challenged the jurisdiction of the court to hear a case against her, a non-resident, at the instance of Mr Mahfouz, who owned a house in London but was not ordinarily resident here. As to the merits, her preface suggested that she intended to plead justification, but given that her sources were likely to have been as confidential as those of her first book, it might not have been an easy defence to run. She could however have relied upon the public interest defence created by Reynolds v Times Newspapers Ltd. This enables the publisher of a defamatory statement to plead that it concerned a matter of general public interest and that he or she acted responsibly in checking his sources and, where appropriate, giving the person defamed a reasonable opportunity to rebut the allegation. An example of a successful defence was Jameel v Wall Street Journal , decided by the House of Lords a year after Dr Ehrenfeld’s case which, as it happens, also concerned the alleged funding of terrorism. The Wall Street Journal reported that the Saudi monetary authority, at the request of the US Treasury, had been monitoring the bank accounts of Mr Jameel’s companies to check whether any payments were being made, intentionally or inadvertently, to persons suspected of having terrorist connections. The Journal had checked its story with sources in Saudi Arabia and at the Treasury in Washington and had asked Mr Jameel’s representative for his comment. But they obviously could not plead justification because there was no way they could have obtained admissible evidence that the Saudi authorities had been monitoring the accounts of a prominent Saudi business man. Nevertheless, the House of Lords decided that the subject was one of considerable public importance and that the Wall Street Journal had acted responsibly in checking and publishing its story.
The subject of Dr Ehrenfeld’s book was likewise of undoubted public importance. Nevertheless, she did not put forward the Reynolds defence. One can only speculate about why she did not. She mentions the cost of litigation, but suing in New York is not cheap either and she seems to have been able to afford to take her case there to the Federal District Court, the Court of Appeals for the Second Circuit and finally the New York State Court of Appeals. Perhaps she had some doubts about whether she would satisfy the English test of responsible publication.
As for jurisdiction, the old rule was that a single publication within the jurisdiction is sufficient to give rise to a cause of action. But that is no longer English law. In Jameel v Dow Jones Co Inc the Court of Appeal decided that if the damage to reputation in this country was insignificant, the court could out the proceedings as an abuse of process. In Shevill v. Presse Alliance S.A. the Court of Justice of the European Communities decided that article 5(3) of the Brussels Convention conferred jurisdiction in libel cases on the courts of any Member State “in which the publication was distributed and where the victim claims to have suffered injury to his reputation.” It was for the national law to decide what counted as distribution and injury to reputation. In that case, Miss Fiona Shevill who lived in Yorkshire wanted to sue France-Soir, which sold 237,000 copies a day in France, 230 in the United Kingdom and 5 in Yorkshire. The House of Lords, following the decision of the Court of Justice, held that she was entitled to do so. In such a case, governed by the Brussels I Regulation, the United Kingdom is obliged to take jurisdiction. In other cases, it can still apply the doctrine of forum non conveniens and decline jurisdiction on the ground that there is another clearly more appropriate forum in which justice can be done between the parties. In Berezovsky v Michaels Lord Steyn said that it was right to take jurisdiction because
“the distribution in England of the defamatory material was significant. And the plaintiffs have reputations in England to protect.” As it happens, I dissented because the judge had found that Mr Berezovsky has not suffered substantial damage to his reputation in England and I did not think that the Court of Appeal should have reversed him. But there was no dispute over the principle to be applied. Whether Dr Ehrenfeld could have obtained a stay on the ground that only 23 copies of her book had been sold here must be a nicely balanced question. But then there is the internet publication. The internet is a means of publication in every country in the world and therefore a means of causing damage to a person’s reputation, if he has one, in any country in the world. Logically, therefore, the courts have decided that the tort is committed where the material is downloaded. ABCnews.com appeared from the evidence to have a substantial readership in England and Dr Ehrenfeld may therefore have found it difficult to persuade the court that the claimants were not alleging a real and substantial tort in this country.
The claimants were aware of Dr Ehrenfeld’s claim in the New York proceedings that they were “hiding the truth behind the screen of English libel law” and therefore did not rely upon the burden of proof being upon a defendant to justify a libel or put forward some other defence. They applied under the summary disposal procedure in sections 8 to 10 of the Defamation Act 1996 and dealt in detail with the grounds upon which the book alleged that they had been supporting terrorism. It is not easy to prove a negative but Eady J said: “I think it is fair to say that they have done everything they can to demonstrate the falsity of the allegations and to vindicate their reputations.” The judge went through the evidence in considerable detail and ended by quoting from an article which had appeared in the Jerusalem Post, which referred to Dr Ehrenfeld as “Mahfouz’s most recent victim”. It said that “she would be hard pressed to “emerge victorious given Britain’s pro plaintiff libel laws” and added that “Mahfouz uses his vast wealth to intimidate his critics into silence with a threat of financial and professional ruin”.
The judge commented:
The purpose of this exercise is fairly obvious, namely to give the impression that any judgment of the English court is of little significance and does nothing to establish that the allegations are false. That is why it is so important, as the claimants appreciate, to go through such allegations as have been made against them in the past on behalf of these defendants in order to demonstrate their lack of merit. That is why this judgment has gone to such length. It is not a purely formal process and the declaration of falsity which I propose to grant shortly is not an empty gesture. The claimants are anxious for it to be made absolutely clear that the defendants have had every opportunity to defend these proceedings by means of a plea of justification if they thought it appropriate. All they have been able to advance, it is said, is material of a flimsy and unreliable nature, and the claimants have taken the trouble to demonstrate its lack of merit.
The judge made a declaration of falsity and awarded £10,000 damages, the maximum allowed under the summary procedure, and costs. The judgment created a great stir in the United States. Dr Ehrenfeld and her supporters campaigned for legislation to protect Americans against foreign libel laws. She seems to have forgiven Richard Perle his flirtation with libel tourism because he remains a member of her board. In 2008 the State of New York passed the Libel Terrorism Protection Act, an odd name which presumably implies that Justice Eady is a libel terrorist. It provides that a foreign judgment in defamation proceedings should not be enforceable in the United States unless the foreign law provides “as least as much protection for freedom of speech and the press as would be provided by both the United States and New York constitutions.” It does not seem to matter whether the claimant is a national of the foreign jurisdiction, suing to vindicate his reputation in his home country, or even whether the defendant submitted to the foreign jurisdiction. Similar legislation has been passed in California, Illinois, New Hampshire, Florida and Hawaii. A bill has been introduced into the United States Senate by Senators Arlen Specter and Joseph Lieberman which goes further and gives the defendant a cause of action in the United States to recover any damages he has paid and costs he has incurred in the foreign proceedings, as well as damages for “the harm caused to the United States person due to decreased opportunities to publish, conduct research or generate funding.” These would no doubt be fixed by a jury. In addition, if the jury
determines by a preponderance of evidence that the person bringing the foreign lawsuit engaged in a scheme to suppress rights under the first amendment by discouraging publishers or other media from publishing, or discouraging employers, contractors, donors, sponsors or similar financial supporters from employing, retaining, or supporting the research, writing or other speech of a journalist, academic, commentator, expert or other individual, the court may award treble damages.
To be a beneficiary of this cause of action, you must be a “United States person”, which is defined to mean a US citizen, an alien admitted for permanent residence or a business entity lawfully doing business in the United States and the publication must have been “primarily” in the United States. It is important to notice that these provisions, if they become law, will impose liability upon British citizens suing in British courts for libels affecting their reputations in Britain. They can hardly be described as tourists. All that can be said is that they have had the temerity to sue an American. The lesson for all foreigners is clear. If you have assets in the United States, beware of trying to defend your reputation in the country in which you live and have been libelled by an American. You may find yourself on the receiving end of a counter-suit for treble damages. No doubt publication on the internet through an American server will count as publication primarily in the United States, however many people may access the libel in your own country. In Dow Jones and Co Inc v Gutnick the Dow Jones company, sued for a libel in a publication which it put on its internet service, argued that liability should be governed by the law of New Jersey, where the server was located. The submission was rejected by the High Court of Australia. Justice Callinan said:
What the appellant seeks to do, is to impose upon Australian residents for the purposes of this and many other cases, an American legal hegemony in relation to Internet publications. The consequence, if the appellant’s submission were to be accepted would be to confer upon one country, and one notably more benevolent to the commercial and other media than this one, an effective domain over the law of defamation, to the financial advantage of publishers in the United States, and the serious disadvantage of those unfortunate enough to be reputationally damaged outside the United States. A further consequence might be to place commercial publishers in this country at a disadvantage to commercial publishers in the United States.
The American reaction to Dr Ehrenfeld’s case has been seized upon by some of the media in this country as support for a campaign to introduce the New York Times v Sullivan rule here. “Doesn’t it shame us”, said the Daily Mail in a leader “that one American state after another has found it necessary to pass laws protecting its citizens’ freedom of expression from the book-burning rules of the British courts.” Comments such as these were accompanied by a good deal of disgraceful personal abuse of Mr Justice Eady. The Guardian carried an article by its columnist George Monbiot with the headline “How our senior libel judge stamps on free speech – all over the world” and “Mr Justice Eady’s rulings amplify the democratic world’s most illiberal laws.”
Is it the case that we have the democratic world’s most illiberal libel laws? The rule in New York Times v Sullivan was adopted to deal with a very special and local political situation which existed in the United States in the early 60s of the last century. Racist politicians and juries in the southern states were using the law of libel to punish any expression of support for the civil rights movement. The Supreme Court decided that the only practical remedy was virtually to abolish the law of defamation for “public figures”, an expression which came to include not only politicians but anyone who involved themselves in public life and even “involuntary public figures” who had became caught up in some newsworthy incident. For such people, the bar against liability is set so high as to be virtually insurmountable. The social conditions which gave rise to the rule have long passed away and it has not escaped both scholarly and judicial criticism, even in the United States, although this has tended to be drowned out by the approval which it naturally receives from the media.
As evidenced by the Ehrenfeld affair, Americans tend to believe that their way is the only way for the whole world. The United Kingdom is obliged under article 40 of the International Covenant on Civil and Political Rights to submit periodic reports on its compliance with the Covenant. In 2007 it submitted its report. On 8 July 2008 the representatives of the United Kingdom were summoned to appeared before the committee in Geneva and explain our position. One question concerned the law of libel. Serena Hardy from the Ministry of Justice told the committee that –
United Kingdom law provided for a number of defences for journalists and others to use. Persons sued for libel could be defended by proving that what they had written was true, constituted fair comment on a matter of public interest or was privileged.“Reynolds privilege” was a privilege that could be applied to journalists in the event that the material published was of genuine public interest and the publisher had taken the necessary steps to ensure that the information published was accurate and fit for publication. The House of Lords had emphasized in the case of Jameel v. the Wall Street Journal that the test of responsible journalism should be applied in a practical and flexible way, taking into account all circumstances relevant to the publication.
The American representative on the committee was Professor Ruth Wedgwood of John Hopkins University, Washington, who, coincidentally, had been a member of the Defence Policy Board under the chairmanship of Richard Perle when the war in Iraq was launched. She was unimpressed by the British explanation. There was, she said –
no exceptions for public figures, even if an assertion concerned the public acts of a public official. That affected the ability of individuals to act as democratic citizens and to question the actions of public officials. The broad definition of publication posed a further problem, as it covered anything that might be seen by chance by a British citizen and so had extraterritorial effect. The standards that had been established, such as acts in the genuine public interest or acts of responsible journalism, gave the courts considerable discretion. A democracy with punitive civil libel laws which believed that free speech was a fundamental right that secured other rights should view punitive civil libel laws as a cause for concern.
When it came to the Committee’s concluding observations, there was a rap over the knuckles for the United Kingdom for its failure to adopt the American law of libel. In a passage which I imagine was drafted by Professor Wedgwood, since she quoted it on an internet blog in support of Dr Ehrenfeld’s campaign, the Committee said:
The Committee is concerned that the State party’s practical application of the law of libel has served to discourage critical media reporting on matters of serious public interest, adversely affecting the ability of scholars and journalists to publish their work, including through the phenomenon known as “libel tourism.” The advent of the internet and the international distribution of foreign media also create the danger that a State party’s unduly restrictive libel law will affect freedom of expression worldwide on matters of valid public interest. (art. 19). The State party should re-examine its technical doctrines of libel law, and consider the utility of a so-called “public figure” exception, requiring proof by the plaintiff of actual malice in order to go forward on actions concerning reporting on public officials and prominent public figures…
The suggestion in this passage is that failure to follow American practice may be a breach of this country’s international obligation under the Covenant to uphold freedom of speech and the press. This is a remarkable proposition, because if state practice is any evidence of international law, it must be of some significance that the rule in New York Times v Sullivan appears to prevail nowhere except in the United States. Article 19 of the International Covenant is in virtually the same terms as article 10 of the European Convention on Human Rights, but it has never even been argued in the European Court of Human Rights that article 10 requires Member States to adopt the New York Times v Sullivan rule. The Supreme Court of Canada gave it careful consideration in Hill v. Church of Scientology of Toronto but rejected it on a number of grounds, one of which was that it was unduly skewed in favour of people who published defamatory statements and gave too little protection to reputation. As Binnie J said in an earlier case, “An individual’s reputation is not to be treated as regrettable but unavoidable road kill on the highway of public controversy”. Very recently, in fact, just before Christmas, the Canadian Supreme Court gave an important new judgment in which they in effect adopted the Reynolds defence of public interest and responsible journalism, the very rule which Professor Wedgwood said gave judges too much discretion. They called it “responsible communication”, which is a better name because, as the Jameel case made clear, it is available to anyone who publishes communications on matters of public interest and not only to journalists.
In Australia the High Court in Theophanous v Herald and Weekly Times likewise gave careful consideration to the New York Times v Sullivan defence and rejected it for much the same reasons as in Canada. It has been rejected in New Zealand. In the United Kingdom a proposal to introduce the defence was rejected by the Neill Committee in 1991 and not argued by the appellants in Reynolds v Times Newspapers Ltd. In the common law world, therefore, the United States is the only country in step. In matters of libel, at least, Professor Wedgwood appears to share Richard Perle’s vision of American exceptionalism.
The other criticism of English libel law is that a defendant, if he chooses to run a defence of justification, has the burden of proving that the defamatory allegation is true. This rule is frequently expressed in America by saying that in England the defendant is guilty unless provided innocent. The European Court of Human Rights has several times been invited to rule that it infringes the freedom of speech and the press under article 10 of the Convention. It has consistently refused to do so. The most recent occasion arose out of the Jameel case, in which the Wall Street Journal petitioned the Strasbourg court after losing in the Court of Appeal. Not satisfied with their victory in the House of Lords, they pressed on with their complaint about the burden of proof. The court dismissed it as manifestly ill-founded. They pointed out that the Reynolds defence does not require the defendant to prove the truth of the statement. It is only if the article is not about a matter of public interest or the defendant has not acted responsibility that any question of the truth of the statement arises at all. And then, what does the burden of proof in practice mean? If a newspaper alleges that Mr Smith, a school teacher, has sexually assaulted a child, what can Mr Smith do to prove the negative if the burden is upon him? True, he can go into the witness box and deny it. But in practice he will do that even if the burden is upon the newspaper. Any libel practitioner knows that he cannot afford not to put his client in the witness box. Whichever party bears the burden of proof, the newspaper will then be at risk of losing unless it brings some evidence to rebut the denial and support its allegations. The burden of proof only becomes relevant if the jury are left in doubt. How often does this happen? Anyone who has sat as a judge will know that cases which turn upon the burden of proof are very rare. Usually, one makes up one’s mind one way or the other, whoever has the burden of proof. And in those rare cases, what should one tell the jury? As Mr Justice Eady remarked in a talk which he gave in December, do we really want the judge to say to the jury: “This is a case in which there is no public interest in publication, or the newspaper has not acted in accordance with the standards of responsible journalism, but their right to publish is so important that if you are in doubt as to whether he assaulted the child or not, you are to find that he did it”?
The comments of the UN Committee on Human Rights were cited by English PEN and Index on Censorship in their pamphlet Free Speech is not for Sale, published in November last year. The pamphlet claimed to “cut through the intimidating complexity of English libel law” which is another way of saying that it was greatly oversimplified. It is rather short on discussion of the issues. It has some sensible and helpful suggestions but also some very silly ones. For example, it proposes that libel damages should be capped at £10,000. It is perfectly true that many claimants, once they have a verdict of the jury vindicating their reputation, do not need, and often do not particularly want, a payment of money. But the libel damages are awarded not merely to compensate the claimant. It is extremely difficult to say what sum of money will compensate someone for the effect of a libel upon his reputation and the distress which has brought him to take the ultimate step of vindicating it by legal proceedings. The compensation must therefore be fixed at a level which will deter the media from irresponsible journalism. Of course in an ideal world in which functions were neatly divided, the civil law should not be concerned with deterrence. That should be a function of the criminal law. But there are obvious disadvantages to using the criminal law to control the excesses of the media. The prosecution for criminal libel has rightly fallen into disuse. Therefore the only source of deterrence is the prospect of a civil action for damages. For this purpose, a limit of £10,000 on damages will be wholly ineffectual. If a newspaper is willing to bid a quarter of a million pounds for the story of a footballer’s mistress, they are unlikely to be deterred by the prospect of having to pay £10,000 if a story that sells papers turns out to be a libel.
The earliest laws of ancient Rome capped the damages for defamation and all other forms of insult short of actual bodily harm at 25 bronze coins. Gaius says that 25 bronze coins may have been adequate for the poverty of early Rome, but the famous jurist Labeo, who wrote in the first century BC, told the story of one Lucius Veratius, who went round Rome slapping respectable people in the face, followed by a slave with a purse of bronze coins who counted out 25 for each of them. As a result, the law was amended and the damages left at large to the judges. Labeo did not see the funny side of his story: he describes Veratius as “homo inprobus atque immani vecordia”, a wicked and brutal man, but he might nevertheless under the PEN scheme be an example for a modern tabloid editor.
EnglishPEN also has its recommendations to outlaw libel tourism. I shall come to them in a moment. First, let me explain the basis upon which English courts take jurisdiction – the principles upon which the High Court accepted jurisdiction in Dr Ehrenfeld’s case. The basic principle is that you can bring an action in tort where the tort was committed. If you commit a tort in a foreign country, you must not be surprised if you are sued there. But there is sometimes a problem, when you do something in one country which causes damage in another, over the question of what counts as committing a tort in that country. The principle applied in most countries is that if the claimant is complaining that a tort was committed against him, he can sue in the country in which he suffered the damage. And as the damage in a libel action is damage to reputation, the tort is committed in any country where you have a reputation and the libel has damaged it. That is the principle which was applied by the Court of Justice in the Shevill case, allowing Miss Shevill to sue France-Soir in England for damage to her reputation in England. The Shevill case is binding upon us as a matter of European law. A Frenchman or a Bulgarian has a European right to invoke the jurisdiction of pour courts if there has been a substantial injury to his reputation in the United Kingdom. We could not refuse jurisdiction merely because the defendant was an American. In any case, the principle that you can sue where the defamation has had effect is, I think, applied by most countries in the world. It is certainly applied by the United States, a country which has never been reluctant to take extra-territorial jurisdiction on the ground that actions abroad have had effects within the United States. It was applied to internet defamation by the High Court of Australia in the Gutnick case, where, as I have said, the defamation was published on the Dow Jones web site hosted in New Jersey. “Those who post information on the World Wide Web” said the High Court “do so knowing that the information they make available is available to all and sundry without any geographic restriction.” Last year, the Ontario Supreme Court gave Conrad Black, in his prison in Florida, leave the sue in Ontario for alleged libels posted on the website of Hollinger Inc, a Chicago-based company, by several of its former directors, including Henry Kissinger, which had been widely republished in Canada. So there is nothing unusual about founding jurisdiction on the fact that the claimant has a reputation and there has been significant publication within the jurisdiction.
The leading English case is Don King v Lennox Lewis, in which the claimant, an American boxing promoter, sued a New York lawyer named Burstein for libelling him by calling him a bigot and an anti-semite in publications on two websites called fightnews.com and boxingtalk.com, both hosted in California. The evidence was that King had a substantial reputation as a boxing promoter in the United Kingdom. He had many friends and acquaintances here. Quite a few of them were Jewish. There was unsurprising evidence that once news is placed on one or other of these websites, it quickly goes round the boxing community, either by means of phone calls, word of mouth or by the information being forwarded on computers. Eady J referred to the very sensible words of Lord Bingham in Slipper v. BBC:
… The law would part company with the realities of life if it held that damage caused by publication of a libel began and ended with publication to the original publishee. Defamatory statements are objectionable not least because of their propensity to percolate through underground channels and contaminate hidden springs
It was therefore entirely proper for Eady J to give leave to serve Mr Burstein out of the jurisdiction and for the Court of Appeal to hold that the exercise of his discretion could not be faulted. It is only if you think, as many Americans do, that an American should only have to say civis Americanus sum to cloak himself in the immunity of the First Amendment against liability for injury which he has caused in a foreign country, or, as much of media in this country does, that we ought to become the second country in the world to adopt the New York Times v Sullivan rule, that there can be any basis for criticism.
The suggestion of EnglishPEN is that an English court should take jurisdiction only where at least 10% of the copies of the publication have been sold in England. But there does not seem to me much logic in saying that, if you have significantly damaged someone’s reputation in England, it should be a defence that you have published ten times as many copies of the libel somewhere else. It is simply a device to allow Americans to carry New York Times v Sullivan with them to this country. Likewise, in the case of internet publications, they say that an English court should take jurisdiction only if the article in question was “advertised or promoted in England”. What does that mean? Taking out an advertisement in an English newspaper urging people to read a libellous article on the internet? The idea seems quite unreal. I prefer the simplicity of the Australian decision in the Gutnick case: if you publish an article on the internet, you are inviting the whole world to read it.
I do not want to suggest that English libel law is perfect. No doubt there are improvements to be made and in relation to costs in particular, Lord Justice Jackson has made some helpful proposals. But the complaints about libel tourism come entirely from the Americans and are based upon a belief that the whole world should share their view about how to strike the balance between freedom of expression and the defence of reputation. And naturally the American view is enthusiastically supported by the media in this country. But before we are stampeded into changing our law, we should bear in mind that the points about which complaint is made are either binding on us as a matter of European law, as in the Shevill case, or have been approved by the Strasbourg court as compliant with the right to freedom of speech under the Convention. Finally, we ought to inquire into whether in practice libel tourism is a serious problem, not just for the odd American who would prefer us to have the rule in New York Times v Sullivan, but for the administration of justice and the public interest in this country. I do not get the impression that there are large numbers of litigants with no connection with this country who are coming here to bring actions for libel. If there are, I would like to see some figures. If the Ehrenfeld case and the Don King case are the best that the campaigners for a change in our law can do, their argument seems to me far from overwhelming.
This is an edited version of a lecture Lord Hoffmann delivered on Tuesday at Inner Temple.
Lord Hoffmann is a retired Law Lord who now acts as an arbitrator and mediator.