Queen’s Speech set to tackle free expression
Is London set to lose its label as global capital for libel tourism, asks Index’s Kirsty Hughes
03 May 12

Is London set to lose its label as global capital for libel tourism, asks Index’s Kirsty Hughes

This article was first published on the Huffington Post

The government’s next legislative programme may sound like a dry topic. But new laws can have a big impact. If there’s a libel reform bill in the Queen’s Speech next Wednesday 9 May, it could end London’s run as the global capital for libel tourism, and prevent free speech on – and offline – being crushed by the UK’s outdated and costly libel laws.

So look out for the Queen saying one key sentence: “my government will introduce a defamation bill”. Since a draft bill was published in January, we also know what the actual defamation bill may look like. So it could get debated in Parliament very quickly and even become law before the end of the year. Done well, this could be a big boost to freedom of expression online and offline.

London – Global Libel Capital

London acquired its undesirable label as the global capital for libel for a mixture of reasons. Costs in libel cases here are over 100 times the European average, meaning just the threat of a libel case can push – or bully – someone to back down in the face of potentially overwhelming legal costs and damages.

‘Libel tourism’ has flourished in the UK as English courts have been far too willing to allow foreign claimants (often wealthy oligarchs with dubious reputations) to bring claims here against foreign journalists, authors and campaigners. In one case, a Ukranian news website was sued in British courts by a Ukrainian businessman over an article only read by around a dozen people in the UK.

And if this is not enough to inhibit and scare investigative journalists or scientists challenging governments or large corporations, UK libel laws as they stand have no proper threshold to stop trivial and vexatious claims. On top of which, the laws put the burden of proof onto the defendant – including when the writer or author is investigating issues where there is a strong public interest such as exposing criminal wrong-doing or protecting public health or exposing individuals or corporations making seriously misleading statements.

A Boost to Freedom of Expression in the UK?

It looks like the government’s new bill – if it makes it into the Queen’s Speech – will tackle libel tourism, putting new limits in place so judges have to consider whether our courts are the ‘most appropriate’ forum for the case before it can proceed. This will represent a real sea-change if it becomes law.

But let’s not celebrate too soon – the draft bill published last March looks good on libel tourism but less impressive in other key areas. It does not set a high enough bar on trivial cases. And the vital need for a robust and simple public interest defence is not properly tackled either. A radical move would be to shift the burden of proof onto the claimant, demanding they show, in public interest cases, malice or recklessness.

Freedom of expression online is still under threat too – for now, threatened with libel cases many internet service providers will take the offending article down straight away to avoid a heavy costly case, whether or not they think there is indeed a problem with the article. This is chilling to free expression and widespread but hard to document: it’s been called the ‘privatisation’ of censorship. The best way to prevent this is to make it clear that if there is a libel, the principle responsibility lies with the author(s) – web hosts are intermediaries not authors and they should not be expected to take something down, or suffer the legal consequences, unless the person or company complaining has got an actual court order. That would prevent libel law being used to shut down opinions and points of view that the wealthy (often in the form of corporations not individuals) don’t like.

Our libel laws affect what we can write, what we read, what we discuss – online and offline. The Queen’s Speech on 9 May may, just, strike a blow for freedom of expression that will benefit authors, researchers, journalists, bloggers and others, not only in the UK but around the world.

Kirsty Hughes is Index on Censorship’s chief executive