Why Roman picked London for his libel trial

How does a fugitive Polish film director living in France and facing a statutory rape charge in the USA sue a US publisher for libel and win? By suing in London’s High Court, of course.

On 22 July 2005, Roman Polanski was awarded £50,000 libel damages from Vanity Fair magazine, which had claimed that on the way to the funeral of his wife Sharon Tate, who was brutally murdered in 1969 by followers of Charles Manson, Polanski had tried to seduce the ‘Swedish beauty’ Beate Telle in a New York restaurant. Vanity Fair alleged that Polanski had promised to make Telle into ‘another Sharon Tate’.

The publisher of Vanity Fair, Condé Nast, conceded in court that the article was inaccurate in terms of dates, but insisted that the incident did happen. Polanski denied it, and said the allegation ‘dishonours my memory of Sharon’. Telle – who was Norwegian, not Swedish, and who did not testify at the trial – yesterday claimed in an interview with the UK Mail on Sunday that Polanski had never tried to seduce her.

In 1977, Polanski was convicted of having unlawful sex with a 13-year-old girl in Hollywood. Fearing a lengthy jail sentence, he fled to France. As a French citizen he could not be extradited to the USA, but the same protection does not apply in the UK.

Yet, despite his fears about facing extradition to America if he entered the UK, Polanski succeeded in taking his libel case to the High Court in London. In February 2005, Law Lords ruled that Polanski should not be ‘denied access to justice’ because of extradition fears and should be allowed to give evidence via a video link.

It is not hard to imagine why Polanski would prefer to sue in England rather than France or America. As the libel lawyer David Hooper explained in his book Reputations Under Fire: ‘London has become known to many foreign “forum-shoppers” as a town named Sue – a place where you can launder your reputation on the basis of a few sales in the UK of some overseas publication.’

It is clear why the High Court is so attractive to litigants. In England the law of libel assumes that the words complained of are false and that the claimants reputation is untarnished. The lawyer for Vanity Fair, Tom Shields, unsuccessfully argued that Polanski didn’t have a reputation to be lowered. ‘As to whether Mr Polanski’s reputation is capable of being damaged, sadly, we would say, it is beyond repair’, he said.

Shields argued that Polanski’s reputation had already been ruined by his conviction in the USA for unlawful sex with a 13-year-old girl and his escape from justice ever since. Yet in summing up, Justice Eady warned the jury that they were not there to judge Polanski’s morals.

Despite Polanski’s tarnished reputation, the odds were stacked in his favour in London’s Royal Courts of Justice. In England, claimants do not have to prove any actual damage to reputation – only that the statement could potentially lower their esteem in the eyes of ‘right-thinking members of the public’. The burden then falls on the defendant to prove that the defamatory words – and their possible interpretations – are true.

Polanski’s case would unlikely have come to court in the USA, even if he had ventured back there. The landmark ruling of New York Times v Sullivan in 1964 created a public figure defence in the USA, making it very difficult for public individuals to sue for libel. It was recognised that public figures have recourse, more than anybody else, to dispute unfair allegations made against them. In order to succeed, claimants would therefore need to show that not only were the allegations untrue but that they were made maliciously or with reckless disregard to the truth.

The US Supreme Court observed that in free debate erroneous statements are inevitable and must be protected – otherwise free expression would not have the ‘breathing space’ it needs and media self-censorship would be inevitable. The fear of not being able to prove the truth of the published words in court, and the recognition of the expense and resources required to do so, would limit public debate.

Some may argue that a law curtailing the freedom to publish titillating revelations about the sordid sex lives of public figures is not much of a threat to free speech. Of course, it would not be much of a loss to society if the seemingly erroneous claims about what went on between Polanski and a Norwegian model in a New York restaurant were never published.

But the problem with libel law is that it has a chilling effect on the whole of the media. The law does not only affect those journalists, broadcasters, editors and publishers who are faced with libel writs. If authors, editors or publishers have the smallest inkling that the truth of a proposition cannot be proven in court (even when made in good faith), the knowledge that they will have a less than a one-in-five chance of success in a libel trial means the story is most likely to be dropped.

Anyone concerned with raising the level of public debate should argue for more speech and debate, not less. That means scrapping the English libel law, for a start.

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