Scrapping ‘libel tourism’ is not enough

Any reform of England’s anachronistic, freedom-quelling, opinion-policing libel laws would be a more than welcome step towards extending free speech and open debate for journalists, writers, academics and other members of the public.

And so the UK deputy prime minister Nick Clegg’s admission that England’s libel system is a ‘farce’, an ‘international embarrassment’ that has ‘a chilling effect on scientific debate and investigative journalism’ and limits the media’s ‘capacity to unearth the truth’, looks like a positive blow against a long-standing obstacle to liberty.

In a speech on civil liberties last week, Clegg vowed to reform the libel system, promising to crack down on so-called ‘libel tourism’ and to protect those who speak out in the public interest. His pledges closely echo those of Jack Straw who, as Labour’s justice secretary, vowed to introduce wholesale libel reform in the name of protecting open debate.

Like Clegg now, Straw in 2009 addressed the concerns outlined in a report by Index on Censorship and English PEN, and focused on foreign claimants who take advantage of London’s reputation as ‘the libel capital of the world’. Such claimants, who have included everyone from a Saudi billionaire to celebrities like Tom Cruise, Cameron Diaz, Sharon Stone and Roman Polanski, have gone out of their way to have their libel cases heard in London’s High Court, even when their cases have had only vague connections to Britain. (Labour ran out of legislative time to push through its proposed reforms, however.)

And just like Clegg today, Straw was in deep need of scoring political brownie points, with the unpopular government he was a member of facing a tough General Election. Today, Clegg has gone from being the media’s darling to the disenchanted public’s punch bag; he needs to build bridges with his erstwhile friends.

But leaving cynicism aside, let’s look at the real problems with introducing only incremental changes to England’s libel laws, rather than a full overhaul. Reform must not be limited to rescuing Britain’s international reputation and disciplining Big Business and wealthy foreigners (who, it is implied, come over here and abuse our system).

The Index on Censorship and English PEN campaign, Free Speech Is Not For Sale, has helpfully and correctly identified some of the most severe problems with the libel laws. For instance, it explains: ‘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.’ Indeed, in libel cases, the onus is on the defendant to prove that his or her statement was either true, a ‘fair comment’ or in the public interest.

It is this fundamental travesty of natural justice and curbs on free speech that need to be done away with. Although libel tourism is a real problem, clamping down on it will only represent a scraping away at the edges of the libel system; it would still leave English people at the mercy of the Kafkaesque libel courts.

The high-profile, embarrassing international court cases that have led to London being nicknamed ‘a town called Sue’ are a relatively easy target for reform. After all, it defies most people’s logic that cases where an allegedly defamatory statement has been made in a publication based in another country, but which has a tiny circulation in the UK, can still be tried here.

The phrase ‘libel tourism’ was first coined a decade ago, after a string of Hollywood stars used the British courts to sue fellow Americans. Arnold Schwarzenegger was one of the first, in 1990, when he sued the American author Wendy Leigh for material contained in an unauthorised biography which was published in the UK, among other countries. Some US states have now passed specific laws to prevent the enforcement of unreasonable libel rulings made in British courts that infringe on their own freedom of speech. And one of Barack Obama’s first acts as US president was to pass a bill preventing Americans from falling foul of ‘libel tourists’ seeking millions in damages over here.

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. This would impair the international exchange of ideas and it would deny Brits access to information and opinions.

But simply preventing foreigners from trying their cases in the UK on flimsy grounds does not free England itself from the draconian curb on free expression and open debate that the libel system represents. It’s chiefly the laws themselves that are a disgrace, not the fact that foreigners take advantage of them.

Clegg has also promised to ‘address the high costs of defamation proceedings’, with proposals to restrict controversial ‘no-win no-fee’ arrangements. Again, this addresses proposals in Free Speech Is Not For Sale to cap libel damages at £10,000 and to make an apology the chief remedy to libellous statements.

Back in 2009, Straw, too, admitted that restrictions on ‘no-win, no-fee’ (or conditional fee arrangements, to use the official term) were needed. This was effectively an admission that New Labour, which introduced conditional fee arrangements in 1999, had expanded censorship to a disgraceful level. In effect, such arrangements are a way of making libel laws more accessible to more people, so that they would not just be the preserve of wealthy individuals and big businesses.

But the lesson to be learnt here is not that the unfair economics of libel cases (which are costly for the defendant and where the chances of winning against the claimant are slim) should be more balanced, it is that they should not come to court in the first place.

It is a good thing that Clegg recognises that the libel laws are a severe curb on a free press and the international exchange of information and research. Adopting the Free Speech Is Not For Sale proposals would be an important step towards safeguarding the free flow of ideas without fear of retribution. But tinkering with the libel laws – by making libel trials cheaper and by preventing foreigners from taking advantage of them – will leave English people in the same oppressive situation as before. In fact, pushing through cosmetic reforms now will only help leave the bigger framework intact for longer.

Instead, let’s follow the lead of the US Congress, which has gone to great lengths to free American citizens from English restrictions on rigorous reporting and free expression of opinion. While there is a mood for reform, let’s scrap these censorious laws altogether.

Nathalie Rothschild is commissioning editor at spiked.