LONDON—Guilty until proven innocent. That is just one of the anomalies of English libel law that straightjacket free speech and need complete reform, says a report by free speech organisations.
The report by Index on Censorship and English PEN says English libel law has a “chilling effect” on free speech throughout publishing and journalism, and is affecting a wider range of people through the internet.
“This effect now reaches around the world, because of so-called ‘libel tourism’, where foreign cases are heard in London,” says the report.
They recommend capping damages at £10,000, saying that with the cost of libel actions in England at 140 times the European average, English libel law is “more about making money then saving reputation”.
The phenomenon of "libel tourism" was highlighted earlier this month when US papers, including The New York Times, told a House of Commons Select Committee that the exploitation of UK libel laws had driven them to consider halting publishing in the UK altogether and blocking access to their websites.
Index and English PEN spent a year researching English libel law and those affected by it before publishing their report, Free Speech is Not For Sale, on November 11th, which lists 10 recommendations ahead of a review of libel laws to be completed on December 16th.
The recommendations include establishing libel tribunals as a low cost forum, a minimum of 10 per cent of copies circulated in the UK before libel law can be invoked, and strengthening the public interest defence.
The report says libel law elevates reputation above the right to free speech based on the archaic assumption that libellous statements are false, “just as it was once assumed that a gentleman must be blameless in English law”.
This burden of proof needs to be brought into line with the rest of English law, says Index.
The right to reputation is not enshrined in human rights legislation in the same way as fundamental rights such as free speech. Compared with other rights, reputation is more subjective. But English libel law bolsters the legal status of reputation by demanding the defendant accused of libel prove their innocence.
“The English approach to libel therefore suggests that the reputation of the claimant is more important than the free speech of the defendant. This feature is one of the reasons why foreign claimants choose English courts over other jurisdictions that do not presume falsity,” says the report.
Over the last decade, growing numbers of foreign claimants have brought libel actions in the English courts, often against those who are neither British citizens nor residents.
In a landmark libel case which was to see a change in U.S. legislation, a Saudi businessman sued American academic Rachel Ehrenfeld in an English court, for comments in her book Funding Evil, despite only 23 copies ever being sold to the UK.
The defendant refused to acknowledge the jurisdiction of the English court, which then gave a summary ruling that the allegations in her book were unsubstantiated, and awarded £10,000 in damages to the claimant.
Mrs Ehrenfeld sought legal protection in the US. When the New York Court of Appeal said that it could not rule on such a case, there was outrage, prompting various States to pass legislation to protect against such rulings in a bill nicknamed "Rachel’s Law". The House of Representatives passed a bill this year to protect all U.S. citizens.
Another contributing factor to "libel tourism" is the Internet says Index.
A U.N. Human Rights Committee report published on July 21st, 2008 said that the internet creates the danger “that a State party’s unduly restrictive libel law will affect freedom of expression worldwide on matters of valid public interest”.
The U.N. report was highly critical of English libel law, saying it had “served to discourage critical media reporting on matters of serious public interest, adversely affecting the ability of scholars and journalists to publish their work”.
The case of a Ukraine publication falling foul of English libel laws via the Internet was picked out in Free Speech is Not for Sale. In an English court a Ukrainian businessman sued a Ukraine-based Internet news site in relation to a series of four articles about his youth. The website publishes in Ukrainian, with only a few dozen readers in Britain. Default judgment in the claimant’s favour was obtained, along with damages of £50,000 and costs, in June 2008. “There is no doubt that these cases will have had a chilling effect on Ukrainian journalists,” says the Index report.
Interactive online services and interactive chat should be exempt from liability says the report, and the Duke of Brunswick rule, established in 1849, which gives liability for each instance of publication, including every mouse click, should be overturned.
Another recommendation is to cap damages at £10,000. The report says that the potential cost of defending against a libel action is prohibitive, meaning the threat of legal action alone is enough to cause retractions and prevent publication in cases where the publisher is innocent.
“The law of libel developed many centuries before the idea of human rights entered the statute books, as part of the arsenal of the wealthy,” says the report. “From its origins in the eleventh century to today’s million-pound court cases, libel law has been used to protect the rich and powerful from criticism and has come to be associated with money rather than justice.”
Index on Censorship describes itself as one of the leading UK organisations promoting freedom of expression and quotes a long list of distinguished writers amongst its contributors, including Milan Kundera, Nadine Gordimer, Salman Rushdie, Doris Lessing, Noam Chomsky and Umberto Eco. The board of trustees is headed by Jonathan Dimbleby and its patrons include Ian Hislop, Michael Palin and Tom Stoppard.