Don’t make libel law ‘fairer’. Make it history
If we are serious about defending freedom of speech, then English libel should be sentenced to death.
A pledge to end ‘libel tourism’; an admission that the English libel laws are having ‘chilling effects’ on free speech; a promise to introduce wholesale libel reform in the name of protecting open debate… UK justice secretary Jack Straw’s pledges, made at the weekend in response to a one-year inquiry by Index on Censorship and English PEN, sound promising. But will Straw’s proposed reforms really work? Or will they simply change London’s reputation from being ‘a town called Sue’ to being a town where suing is only made a little bit trickier?
Straw admitted that the English libel system has become unbalanced, that big corporations and wealthy individuals from abroad are using the libel laws to restrict fair comment by journalists and academics. He wants to see new restrictions on ‘no-win, no-fee’ arrangements - where people can take libel actions at relatively little cost - and to introduce curbs on legal fees. The Index on Censorship and English Pen campaign, Free Speech Is Not For Sale, proposes capping libel damages at £10,000 and making an apology the chief remedy to libellous statements.
However, to suggest that the biggest issue with the English libel laws is that they are ‘unbalanced’ is to miss the biggest problem: the fact that they exist at all. Ideally the libel laws should be scrapped, not merely tinkered with.
The role of the English libel laws is to protect people from having their reputation tarnished or from being exposed to hatred and contempt. In libel cases, the onus is on the defendant to prove that his statement was either true, a ‘fair comment’ or in the public interest. This turns natural justice completely on its head. As the Free Speech Is Not For Sale report says, ‘The English approach to libel suggests that the reputation of the claimant is more important than the free speech of the defendant… It is also an anomaly in English law, where defendants are usually presumed innocent until proven guilty.’
The report rightly points out that ‘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’. Yet Straw, in suggesting that libel laws need to become ‘more equal’, seems to believe that the real, most significant, unfairness is that libel suits are a luxury measure, benefiting Big Business and wealthy foreigners (who come over here and abuse our system).
Libel tourism is a serious problem. There have been numerous cases in which claimants have gone out of their way to have their cases tried in London’s High Court, even when their case only has vague connections to Britain. If an allegedly defamatory statement is made in a publication based in another country, but which has even a tiny circulation in the UK, it can still be tried here. For instance, in 2005 Rachel Ehrenfeld, the American author of Funding Evil: How Terrorism is Financed and How to Stop It, got sued for libel in London by a Saudi billionaire discussed in her book, on the basis that 23 copies of Funding Evil were sold to UK residents via an online bookseller. Celebrities including Tom Cruise, Cameron Diaz and Sharon Stone have also won settlements after suing in London, ‘the libel capital of the world’. American newspapers, including the New York Times, the Washington Post and the Boston Globe have warned that they may stop selling copies in the UK because of the risk of being sued. Our libel laws potentially deny us access to everyday information and insights.
But the question that we need to ask is why these wealthy individuals choose to sue in England in the first place. It is because they can. A cap to damages is unlikely to put an end to libel cases, and restricting foreigners’ use of the libel laws still leaves England itself with a draconian curb on free expression and open debate. The focus on libel tourism as the main problem with English libel gives the impression that nasty foreigners are making a mockery of our laws, when in fact it is the laws themselves that are a disgrace. Draconian, illiberal and weighted in favour of sacred reputations over free speech: no wonder these backward laws attract foreign oligarchs and other wealthy people with little regard for democratic debate.
Neither is it chiefly the fact that most ‘normal people’ or academics and journalists can’t afford to go through a libel case that makes these laws unjust. It is true that the prospect of a costly trial, where the chances of winning against the claimant are slim, can silence writers and commentators. But this situation cannot be rectified simply by lowering legal fees and payouts. The unquestionably unfair economics of libel have motivated the government to tinker with the laws in the past - with the outcome that libel lawsuits became accessible to more people, hence broadening the scope for censorship.
So with the introduction of Conditional Fee Arrangements in 1999, lawyers had to accept ‘no-win, no-fee’ rules, and many saw this as a leap forward for making libel laws fairer. Yet just because libel cases became more affordable – which essentially means that more people can use them in order to clamp down speech that they don’t like – that doesn’t mean they became any more just or democratic.
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In admitting that restrictions on ‘no-win, no-fee’ arrangements are now needed, Straw is effectively admitting that New Labour has presided over a ‘democratisation’ of censorship, where the attempt to make libel ‘fairer’ has made things worse. So far, tinkering with the libel laws has only led to more of that chilling effect that Straw apparently deplores. A cynical person might point out that the period before a General Election is a good time for a politician to strike a pose for free speech and take a stand against Big Business.
More importantly, Free Speech Is Not For Sale proposes that the burden of responsibility is shifted from the defendant having to prove their innocence to the claimant being required to provide evidence of falsity or unfairness. The report proposes that it should no longer be enough simply to claim that a reputation has been damaged; rather the claimant should have to demonstrate that damage has been caused. Another aspect which must be challenged is the unaccountable role of judges in determining libel trials. The court rules on what meaning a ‘reasonable person’ might place upon the words complained of. So the defendant must not only prove that he is telling the truth - he must also defend whatever a judge says someone could have interpreted his words to mean. And that is just bizarre.
The Free Speech Is Not For Sale proposals are good ones, and, if adopted, they will be an important step towards expanding freedom of expression without fear of retribution. But the British Parliament would do even better to follow the lead of the US Congress, which is currently trying to provide its citizens with legal protection from being pursued in America under the judgements of English libel courts. The same should happen here; English libel laws should be abolished for English people, too.
An open search for the truth, rigorous reporting, free expressions of opinion: these things, which should be the preserve of everyone and not only we journalists or scientists and academics, cannot exist side by side with the English libel laws.
Nathalie Rothschild is commissioning editor of spiked. Find out more about the Free Speech Is Not For Sale campaign here.