Policy Exchange: Libel Reform Conference
This is a guest post by ami
Say what you like about Policy Exchange, (and some of you have) but at the seminar I went to last week; they had a darn sight more balanced panel than that other think tank managed the week before. This made the debate on the free speech/libel conundrum so much more interesting.
The subject of libel tourism has begun to attract considerable attention abroad: the New York State Legislature voted unanimously to pass the Libel Terrorism Protection Act in April 2008. The impetus for this move came directly from the English court judgment in favour of Khalid Salim bin Mahfouz, who sued Dr. Rachel Ehrenfeld for defamatory statements in her book Funding Evil, How Terrorism is Financed – and How to Stop it, about his alleged involvement in the funding of terrorism, allegations which Mr. Bin Mahfouz vehemently denied. Although Dr. Ehrenfeld lived and worked in the United States, the English court awarded damages and costs to the claimant and granted an injunction prohibiting the book from being published in England.
This growing phenomenon of “libel tourism”, where non-English citizens travel to England in order to press libel charges on US citizens whose work is protected under US law – shows the willingness of courts in this country to extend libel laws well beyond the boundaries of England. This has been seen by many as a great threat to the right of free speech in the West. There is now a bill before Congress to extend the effect of “Rachel’s Law” to the whole of the USA.
The first speaker, New York State Assemblyman Rory Lancsman who introduced the NY bill, described this as part of the legislative move to counter the use of the law by terrorists. Another example was the 2007 Act protecting passengers who reported suspicious activity of fellow passengers from being sued, a reaction to the CAIR lawsuit in the “flying imams” case.
Already in 1997, in the case of Telnikoff v Matusevitch, the Maryland Courts refused to enforce a UK libel judgment arising from a letter to the Daily Telegraph, as it found UK libel law so weighted against the defendant that they ran contrary to the First Amendment.
The principles of English and US law are no longer so different as they were in 1997 circa the Maryland case as there have been developments such as the Reynolds case with its defence of privilege.
In England, the onus is on the defendant to prove the truth of the statement, the reverse in the USA, where the plaintiff also has to prove malice. The English courts award costs against the losing party.
Lancman stressed the flimsy connection with the UK which the English court found sufficient to establish jurisdiction to hear Ehrenfeld’s case: she is a New York resident, Mahfouz a Saudi resident, yet because 23 copies were sold in the UK via the internet and one chapter published on the internet and therefore available in the UK, this was sufficient to found jurisdiction to bring the case in an English court.
Ehrenfeld did not defend the matter, and judgment was entered for £30,000 damages, an order for an apology, and that she cease publishing in the the UK. In order to comply, she would have to take all measures to prevent the book being sold anywhere in the world.
Tellingly, Mahfouz declined to enforce the judgment in the U.S., lest this trigger a repudiation in the U.S. Courts.
The bill, before Congress, which is supported by PEN, codifies the NY law that a judgment will not be recognised unless it provides the same free speech safeguards as the US, and an author can ask a US court for a declaration that the judgment is unenforceable, without having to wait for the Claimant to attempt to enforce it.
Lancman said he was not criticizing UK democracy- just that it should not impose its version globally where there is no strong UK connection.
Laurence Harris, who acted for Mahfouz, responded. The Judge in the matter found Ehrenfeld’s book not to be a work of scholarship, but one badly researched and full of errors. The 23 copies were merely the ones the claimant was able to identify, as the publishers wouldn’t disclose information. As regards libel tourism, there are many cases which are thrown out for insufficient jurisdiction, but the Judge found in this case that Mahfouz has homes and a business reputation in the UK. As for the judgment having a chilling effect on free speech, Ehrenfeld brought out a 2nd edition: “The book the Saudis didn’t want me to publish”- and has been prolific in interviews and writing.
Anthony Julius put himself midway in the debate between, as he put it “the Congressman and the hired gun”. He asserted it is not about the war on terror: to legislate on this basis illustrated that not only hard cases make bad law, but that topical cases make bad law. We should not allow content driven considerations to have a distorting effect. As regards Ehrenfeld’s subsequent publication, he observed wryly that Harris was making too much of the unintended consequence of his clients action. He doubted whether Harris had advised his client at the outset: “If you sue her here, she will sell more books elsewhere.” He cited David Irving’s case (Julius defended Lipstadt) as a case of forum shopping where Irving was local but there were minor sales of her book here. Irving tried to take advantage of the burden of proof to suppress freedom of speech. However, Julius implied that, had he continued to represent Ehrenfeld (another firm took over) he would have advised her to conduct a full defence of the case. He pointed out this was not a banana republic and the courts are vigilant. (He left unsaid that the proof of this was that despite the uneven playing field, Lipstadt prevailed.)
There was mention of the chilling effect of this case in getting Cambridge University press to pulp another book on a complaint by Mahfouz.
Sean O’Neill of the Times said in his long career, he found now the time of greatest threat of defamation as a weapon, and complained of some leading law firms trawling the media looking for clients. He said there were lax checks at Company House for directors who were on an Interpol red list for terrorists. He was investigating the case of a CEO of a media company who was on the list as a suspected terrorist. O’Neil works on the premise that some of these notices are politically motivated by Middle East regimes, and had a cub reporter query the man as to why he was on the list. The emailed response to the cub called him a racist Zionist, an Islamaphobic criminal liar and threatened he would contact Carter Ruck. (the cub happens to be Greek). No win no fee had made things worse, and the Times was now even more inclined to settle and not fight, retracting and removing stories from the internet. They had to apologise twice for the story about the hardline books in the mosque, on the basis that the mosque was only the leaseholder of the bookshop.
Paul Tweed, a Northern Ireland lawyer who acts for many celebrities in libel actions, said the main reason Ehrenfeld didn’t defend was the risk of costs, but if she believed she was right, she would have got her costs if she won.
Julius proposed that conditional fee arrangements should be abolished or cut down, and there should be a substantial connection with the country where the case takes place, but what made me want to punch the air in heartfelt recognition, were these observations he made:
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The real problem is predatory claims coupled with cowardly defendants.
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Proprietors do not serve their journalists well: although the libel laws should be equalised, it is the settling of balance sheets which is the crux of the malaise.
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The papers can afford to fight; celebrity cases are fought for huge fees.
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It is their proprietor’s values which are at fault, when defendants fight cases which are of no consequence but to Hello!.
Tweed agreed that defendants rolling over sent claimants a message.
My views on this have been expressed here before, born out of personal experience of supporting my son who runs a webhosting company which is subject often enough to opportunistic bluster. These he steadfastly resists notwithstanding the legal and other inconvenience. This would be greatly assisted if other, more powerful ISPs didn’t cave so routinely when confronted by any aggrieved person who demands they shut down a site which annoys them on the most risible grounds.
Someone commented from the floor that Harry’s Place was being sued, but that most bloggers would back down as they were in no position to stand up to such threats. Julius assured us that the threat to HP, which was serious, was being responded to in a serious and tough way. To which I would add, the message this sends to claimants and the encouragement to other bloggers and ISPs, cannot be underestimated.
Julius added mischievously that occasionally he is consulted by predatory fabulously wealthy clients, and he advises them: If you want the truth, but don’t want to use your wealth in a coercive system, then why not invite the alleged defamer to a tribunal at no financial risk, where you will pay the costs, thus ensuring the truth is reached in a level playing field.
Oddly, no-one has taken up the proposal.
If that proposal doesn’t appeal to you either, you could always redress malicious gossip at no cost and without resorting to the law if you follow this man’s example.
Joanne Cash, the barrister who chaired the meeting announced she is setting up a panel for reform of defamation law, and called for people to join her. She deserves all the support she can get.
David T adds
The barrister who chaired the meeting was Joanne Cash. I remember her well from university.
Also, read Martin Bright’s report of the meeting.
Comments
| 22 July 2008, 9:41 am |
No win no fee had made things worse, and the Times was now even more inclined to settle and not fight, retracting and removing stories from the Internet.
I am aware of this and I can say from personal experience that I was very disappointed that The Times chose not to fight a legal case that was initiated by someone after a comment I made on their blog. In my opinion, my comments were completely justified. The problem was that in this case the person that claimed that they had been libeled acted as a litigant in person. This, I am informed, is the worst nightmare for lawyers as litigants in person are notoriously difficult to deal with.
The cost of defending an action can be astronomical and the even if the libel case is thrown out, if the person that has initiated the libel action has no real assets then the defendants in the action are unlikely to be able to recover their costs. I believe that that in my case, The Times would have won the case had they chosen to defend it, but I accept it may have been expensive for them to do so and from their point of view, a Pyrrhic victory.
If all someone is asking for is the deletion of the comments that they are saying is libel, an apology and an amount of money that would be equivalent to 1 or 2 hours of a good barristers time then it is easy for a newspaper to settle and move on.
The matter is of course different if the litigant in person is not suing a newspaper that has capital and is suing a blog run by a person/people without much assets themselves or with the determination to fight. The litigant in person may find that the blog owners will not be bullied by such tactics and will fight back. I suspect such cases ultimately get dropped. It is easier to sue a newspaper isn’t it?
It certainly is time the libel laws are reformed. How can anyone justify the award of £600,000 (reduced on appeal but still to a decent sum) to Sonia Sutcliffe, the wife of the Yorkshire Ripper in a libel case against the satirical magazine Private Eye? It is far better in the USA.
| 22 July 2008, 9:41 am |
My proposals for libel law reform
1. The primary remedy should be a correction, not damages or an injunction.
2. Damages if awarded should be limited to actual material loss: i.e. how much the claimant can prove s/he is out of pocket. No aggravated or punitive damages.
3. The burden of proof in all elements should be on the claimant.
4. No public figure - a category which should include all politicians - should have the right to sue in any circumstances.
The remedy for bad speech is more speech: not less.
| 22 July 2008, 10:02 am |
I am aware of the case Mikey refers to, and mentioned it to Sean O’Neill as an example of the worst kind of caving; in my view there wasn’t the faintest chance of the claimant succeeding. He seemed to agree.
As regards suing bloggers, complainants tend to bypass the blogger and go straight for the ISP, like my son, who is viewed as having more assets than the blogger. in the Quackometer case, the giant ISP caved, my son’s not so giant company did not. The matter went away.
| 22 July 2008, 10:05 am |
“The remedy for bad speech is more speech: not less.”
Perhaps this is actually the answer. In a time where media was concentrated in a few specific hands and essentially unidirectional, there might have been a place for libel. But today, with hundreds of 24-hour television and radio channels, the Internet, Desktop Publishing, and a much more decentralised print media, it is far easier - and probably more effective - to offer up counter-claims and defend oneself in a more democratic arena.
| 22 July 2008, 10:07 am |
In the case Mikey refers to, in my view the case would have been struck out by the judge before it even got to court, thus incurring (relatively) minimal cost.
We have had that experience, as has Oliver Kamm.
| 22 July 2008, 10:16 am |
How can anyone justify the award of £600,000 (reduced on appeal but still to a decent sum) to Sonia Sutcliffe, the wife of the Yorkshire Ripper in a libel case against the satirical magazine Private Eye?
Certainly not the courts; the award was struck down to £60,000 on appeal. Great post, ami.
| 22 July 2008, 10:20 am |
Hasan,
Do you think that Sonia Sutcliffe was deserved of £60,000? How much compensation did the families of the victims of her husband receive?
| 22 July 2008, 10:20 am |
Really interesting stuff, thanks for bringing this to our attention. This is clearly an area of confusion and looks open to abuse. Wouldn’t it be nice to see the Labour government stand up for freedom of expression instead of wilting in the face of wealthy opponents.
| 22 July 2008, 10:25 am |
Ami,
For obvious reasons I am aware of certain things about the case I have mentioned but all I will say is that it is quite simple to pay a little bit of go-away money isn’t it? Even before it got to court and being thrown out (if you accurate) how much money would it cost The Times in fees to barristers? They do not come cheap.
I once paid a parking ticket that I feel was unjustified, but that was because a £40 fine was cheaper for me than to take a day off work, attend the court and argue my point. I was very annoyed about it but that was the reality.
I guess The Times or a different newspaper can take a similar view with nuisance legal claims for defamation.
| 22 July 2008, 10:25 am |
The whole point of British Libel Law is that it is weighted in favour of the powerful. It is not the case that it is a fair process which has gone adrift. It was supposed to be unfair in the first place.
Incidentally, truth is not necessarily a defence in a libel action, since a malicious truth is obviously more damaging than a malicious falsehood.
One problem is that libel cases can only be heard in the High Court, at an enormous expense. Yes the palintiff will pay your costs if he or she loses, but the defendant will be liable for his or her costs if the things go the other way. So the defendant has nothing to gain and in most circumstances everything to lose. This is why all proprieters cave in at the first solicitor’s letter. Defended libel cases are extremely rare.
I must add credit where credit is due and say the most generous behaviour I have ever encountered from a libel complaint came from McDonald’s. They had a magazine I worked for pretty much bang for rights, and could have asked for anything they wanted. All they wanted, however, was a retraction printed at the same length word for word, as the original paragraph they considered defamatory. They did not even charge us for the solicitor’s letter.
| 22 July 2008, 10:31 am |
Cinncinatus,
I guess ever since The McLibel Trial McDonalds have been wary about initiating libel cases.
| 22 July 2008, 10:41 am |
“Do you think that Sonia Sutcliffe was deserved of £60,000? How much compensation did the families of the victims of her husband receive?”
I’m not sure that legally or morally speaking the two sums should be linked, unless it can be shown that Sonia Sutcliffe was complicit in her husband’s crimes. What’s more, it seems this payout wasn’t profiting from the notoriety of his crimes but from the false suggestion that she was, which is a completely separate issue.
| 22 July 2008, 10:55 am |
One problem is that libel cases can only be heard in the High Court, at an enormous expense: Not quite. But as Kamm pointed out, Mr Clark found to his cost that County Court (i.e. a court that deals with small claims and most aspects of civil law) does not have jurisdiction to hear libel cases unless the defendant has given written consent beforehand.
http://oliverkamm.typepad.com/blog/2007/11/those-unthreate.html
Still, it is used:
http://news.bbc.co.uk/1/hi/uk/6310565.stm
http://www.guardian.co.uk/technology/2002/may/21/internetnews.newmedia
| 22 July 2008, 11:12 am |
Brett,
I am not saying that they should be linked either, but what I am saying is if there are damages awards for certain things then they should be proportional. If someone gets say £7k for losing a loved one as the result of vicious murder then it seems to me that £60k for an incorrect allegation that the wife of a mass murderer profited from the murders is excessive.
We have to also consider what year that was (1989) and what the average annual salary was in those days. The payment of £60k to Sonia Sutcliffe was an insult.
Moreover, the original award of £600k would have probably bankrupted Private Eye. I have a lot of sympathy for the famous comment by the editor of Private Eye, Ian Hislop after the award, “If that’s justice, then I’m a banana.”
| 22 July 2008, 11:13 am |
David, was your comment serious? I can’t tell. If you are serious, why isn’t what you suggest a Libellors (is that a word?) charter?
Surely the right thing to do is to make the whole thing fairer by taking away the advantage that having lots of money provides? Basically make the whole thing cheaper and easier.
| 22 July 2008, 11:17 am |
Excellent post, Ami. Thanks very much. Part of the problem is that the left generally turns its nose up at campaigning at reforming the courts except where it’s directly related to issues like racism and homosexuality. I would love to see more of us campaigning to get these charters for silencing criticism through disproportionate financial risk taken down.
| 22 July 2008, 11:23 am |
“If someone gets say £7k for losing a loved one as the result of vicious murder then it seems to me that £60k for an incorrect allegation that the wife of a mass murderer profited from the murders is excessive.”
It seems to me that you can’t compare the two cases. Who pays the £7k? Not the perpetrator. So a more honest comparrison would be to compare the £60k punishment for libel to the multiple life sentences for murder (i.e compare two punishments for two offences).
| 22 July 2008, 12:09 pm |
An US academic journal that Joseph Massad had written for was on the receiving end of a libel tourism claim a few weeks ago - ironically, his opponent’s UK lawyer previously represented Ehrenfeld.
| 22 July 2008, 12:17 pm |
Bartholomew: Oops. The hazard of being a hired gun. Best to stick to the merits of the particular case and avoid grand extra judicial declarations when you have been hired both ways, as in this case.
| 22 July 2008, 12:20 pm |
Cinncinatus: Incidentally, truth is not necessarily a defence in a libel action, since a malicious truth is obviously more damaging than a malicious falsehood.
I know that’s on the books, but has a case ever come to court on such grounds? Unless it’s a case of a “partial truth” which gives a distorted overall view, judging a motive of “malice” seems rather subjective, and creates the absurd situation in which it might be libellous for one person but not for another to write the same thing.
| 22 July 2008, 12:36 pm |
Do you think that Sonia Sutcliffe was deserved of £60,000? How much compensation did the families of the victims of her husband receive?
Sonia Sutcliffe sued Private Eye and the jury found in her favour. The amount of the award has no relation to the appallingly low compensation paid to victims.
| 22 July 2008, 12:36 pm |
I can’t help agreeing with Ag above. Clearly the law is badly broken and needs to be overhauled. However, I think David’s suggestions go too far.
If I make a derogatory claim about someone it’s not unreasonable that I should be expected to back it up if required and prove that it is either true or that I had good reason to believe it to be true. Furthermore if I can’t back it up, and the allegation is a serious one, I can’t complain if I have to pay a reasonable amount of compensation even if the other person has not suffered any financial loss.
| 22 July 2008, 12:41 pm |
If you can’t back it up, then your argument - and you - are likely to be discredited.
People are capable of making these sorts of judgements themselves. You don’t need to waste court time on the vanities of claimants.
| 22 July 2008, 12:52 pm |
Brett/Hasan,
I understand that they are very different things. What I am saying is irrespective of them being very different things that there should be some sense of rationality. Sonia Sutcliffe was known to be the wife of a mass murderer. She did not have a very good reputation for that reason alone. If someone had technically libelled her - how much worse can her reputation have got? I am not against the fact that she won the case but maybe she should have been awarded derisory damages and made to pay her own costs. Sometimes the courts see sense. In the case of Sonia Sutcliffe, I do not believe they did. A payment to her of £60k, a multiple of the average annual wage at the time was a ridiculously large amount for how much her reputation could have been further harmed by the libel.
| 22 July 2008, 12:52 pm |
reasonable amount of compensation even if the other person has not suffered any financial loss. If no financial loss, compensation for what? What is reasonable for an intangible like hurt feelings? I say I am more sensitive than you, so merit more. It is really a punitive system currently, not compensatory.
| 22 July 2008, 1:01 pm |
I wouldn’t object to the courts ordering real compensation: a proper retraction prominently displayed in a national newspaper, for example, or an erratum slip in a book.
| 22 July 2008, 1:01 pm |
“Sonia Sutcliffe was known to be the wife of a mass murderer. She did not have a very good reputation for that reason alone … a ridiculously large amount for how much her reputation could have been further harmed by the libel.
I don’t know if she was complicit in her husband’s crimes or acted to cover them up, but assuming she wasn’t (because she wasn’t a co-defendent) why should the fact that one’s spouse has committed a crime count against one’s own reputation? For exercising bad judgement in marrying someone of questionable character?
Perhaps the reason she sought to defend her remaining reputation so vigourously was precisely because of the already unfair damage to a good part of it.
| 22 July 2008, 1:03 pm |
You lot want the libel laws changed so you can carry on telling lies about people. I can’t wait to see you grovelling in court.
| 22 July 2008, 1:09 pm |
resistor: You support commoditising reputation? How capitalist, how bourgeois.
| 22 July 2008, 1:30 pm |
carry on telling lies about people. You calling me a liar?
Can you prove that, resistor, because the onus is on you. HP, sue resistor at once.
| 22 July 2008, 1:31 pm |
As a journalist I used to be in favour of placing the burden of proof on the plaintiff but these days I’m wavering a little. In so many cases newspapers artfully whistle up a storm of inference and innuendo that can entirely blacken someone’s reputation and may be difficult to disprove.
Should Robert Murat have been forced to go to court and prove - somehow - that he didn’t abduct Madeleine McCann? If he’d done so, he’d be effectively putting himself on trial as a murderer, but with the balnce of proof reversed. Who’d take the risk?
| 22 July 2008, 1:40 pm |
Brett,
According to press reports Sonia Sutcliffe regularly visited her husband Peter Sutcliffe, the Yorkshire Ripper, in prison, so she did not disown him or suggest that she wanted nothing to do with him. According to the Daily Telegraph in 2008 she still visits him. 27 years after he was locked up - she has remained loyal.
That alone says quite a lot about the type of woman she is and her reputation to me.
| 22 July 2008, 1:57 pm |
If you can’t back it up, then your argument - and you - are likely to be discredited.
That may not be much comfort to the person who has had his reputation blackened.
People are capable of making these sorts of judgements themselves. You don’t need to waste court time on the vanities of claimants.
Without a court case or some other formal tribuneral to determine whether an allegation can be substantiated the wider public may not be in a position to make such a judgement. Mud sticks you know.
| 22 July 2008, 2:04 pm |
ami
very, very well thought through, and written, post.
No I am not being at all facetious. I think you have covered so many relevant points
I particularly agree with you over the iniquitous position of the ISP who are a conveyor of information more like a telephone company in many ways than a publisher like a Newspaper (the comparisons are of course inexact for new media).
I do think that the whole issue of reputataion is a major problem associated with the distortions of money, power, wealth and status.
For me a prostitute does have as much of a reputation to defend (if accused of being a thief or even a bad mother) as a Saudi Prince.
Perhaps the equalisation of penalty, such as an apology and retraction as David T, would go a long way to correct this.
Damages already commoditise the damage to reputation so that Elton John’s reputation deficit for allegedly hiring a male prostitute (as reported by the press) is worth so much more than such an accusation against say a ‘dead beat dad’ (who apparently has no reputation to defend).
Indeed the libel laws are established around that very Victorian concept of a ‘gentleman’s reputation’ as being more valuable than life itself (hence the revolver in the desk drawer for the man whose reputation is beyond repair).
Your account of Anthony Julius’s view seems unobjectionable as far as it goes, but as you point out as a prominent hired gun he is unlikely to contest the foundations of the UK libel law and its jurisdiction (nor would we, I assume welcome the reduction of the judgement in the David Irving case to become a purely local one).
So the only thing that I do have an opposition to (and despite our previous disagreements) the shifting of the burden of proof onto the claimant/plaintiff as David T suggests (and as you point out is the situation in the US).
Ag points out this could be construed as a ‘libellors’ charter.
I wonder what your position on this is?
After all none of us likes untruths to be propogated about ourselves.
A sense of reputation is not itself a bad thing, indeed in a democratic society such a ‘cultural capital’ or shared value of respect for each others personhood is one of the bonds of scoiety that glues us together in the prescence of otherwise dissovling factors such as huge disparities of wealth or power.
By person I do not mean the self or inner sense of our identity (though we feel that to be wounded too by defamatory accusations) but the interpersonal human being of roles and perceived character that interacts with others and damage to which can cause ostracism and social rejection.
A direct comparison with the US is not easy when their free speech laws have a constitutional entrenchment that has never been the case in the US.
The US constitution also guarantees a right of representation in all criminal trials and in all civil cases involving a value of $20 or greater (so what was once perhaps the price of a horse is still specified as that amount).
In addition whilst I very much appreciate the context of the present US move to exclude from application in the US such UK judgements, it is a furtherence of a very unilateral approach to US legal jurisdiction.
There are many examples where the US lays universal jurisdiction to the whole world in what should be purely commercial or civil affairs.
The Helms-Burton ammendment for example extends US civil and criminal penalties to individual non-US citizens residing in another jurisdiction who may simply be employed by companies who trade with other companies who trade with Cuba.
I think that you are absolutely right that UK libel law must be reformed, but in an global free market where we do not wish to undermine free trade or engage in tit for tat exclusionary legal protectionism, it is as i am sure you agree, a delicate affair.
I think my view would be to reform in the direction you (and David T) suggest but not to alter the burden of proof over a claim that would result in retraction and apology.
I would also propose ammendment so that third parties (specifically ISP’s, Radio, TV) who report such allegedly libelous comments are not actionable other than in the case of malicious reproduction with the intention of defamation. (ie the mes rea of malice aforethougt).
I am thinking of a nested or hierachy of included offense rather like the offences against the person Act where an unintentional assault resulting in a minor injury has a lower penalty compared to a major injury and where the intention is to cause harm and does more severe penalties ensue.
I think that a sense of being aggreived (which is not trivial if the allegations are false and malicious) in a democracy committed to free speech is correctly addressed with retraction or apology.
Actual lasting damage to a person whose livelihood depends on their reputation (insofar as it does not depend on falsehoods) can be measured, weighted and weighed according to the normal rules of evidence, don’t you thinl?
| 22 July 2008, 2:36 pm |
Joanne Cash needs to be supported on this, so we need to keep her free of distractions. She can’t possibly do this as well as managing the interests of Westminster North so I expect to see everyone campaigning for Karen Buck at the next election.
PS she’s about to become one of my constituents when her building work finishes.
| 22 July 2008, 2:55 pm |
Maybe there ought to be a distinction between “petty” libel and “serious” libel: the former to be dealt with by small claims courts and so kept within reasonable bounds, and the high courts reserved for serious cases like Murat and the McCanns.
| 22 July 2008, 2:57 pm |
A consequence of the leftward shift in our Judiciary (the Marxist ‘long march through our institutions’) is the increasing contempt with which it is being seen in other parts of the world.
Why on earth are our Judiciary awarding libel damages against foreign nationals in other nations of the world where they know that their writ does not run? Do they really want to be seen as international pariahs whose judgements are simply to be treated with contempt and ignored?
Prediction: ‘Rachels Law’ before Congress will be passed, and future extra-national rulings by the British Judiciary will be treated accordingly everywhere. An own goal if ever there was one.
| 22 July 2008, 3:15 pm |
David Boothroyd - there appears to be a tension between your work as a Westminster Labour councillor and your other job:
| 22 July 2008, 3:16 pm |
mettaculture: you raise some very valid points and I hope to respond later as best I can later- no time right now. I don’t know the answer to simonh’s and your point when applied to Murat- to have to prove he didn’t kill Madelene, in a civil court- seems wrong- how do such cases fare in the US?
Paul Tweed argued in effect that this was the thin end of the wedge to the principle of comity- he said, what next- will the US block debts and contracts that offend them? Not sure if that follows.
| 22 July 2008, 3:30 pm |
In England, the onus is on the defendant to prove the truth of the statement, the reverse in the USA, where the plaintiff also has to prove malice.
Not exactly, US law does not require proof of malice in the sense of spite of will will, but rather that the public figure proves that the defendant published the defamatory statement with knowledge of its falsity or with reckless regared for whether the statement was true or false.
Truth is an absolute defense to a defamation claim. No one really disagrees that reputation is a societal interest, but the onus should always be on the plaintiff to prove the supposedly libelous statement false. The ECHR imposes a nebulous free expression balancing test in all libel cases, but this falls far short of the categorical protection in US law.
| 22 July 2008, 3:33 pm |
Also under UK law it’s sometimes illegal to publish the details of a spent conviction or other accounts already in the public record. Under US law, the First Amendment does not permit any government action for publication of legally acquired truthful information.
| 22 July 2008, 3:46 pm |
LC
Is it really right or fair or easy for a teacher claiming that allegations that they are a paedophile are false.
I mean a witch was well known to argue that they were not guilty of witchcraft.
But given the seriousness of sorcery no person of goodwill would make such an unfounded allegation.
Such allegations necessarily had to result in arrest and being put to the question, because witches were very clever and the assistance of Satan would mean that even the abscence of any evidence whatsoever that could have formed any reasonable grounds for the substance of such allegations could obviously not prove that she was indeed not a witch.
| 22 July 2008, 4:28 pm |
LC
‘Under US law, the First Amendment does not permit any government action for publication of legally acquired truthful information’
Not exactly.
I was arrested in the State of Texas for suspected DWI (driving while intoxicated) which I was not and for which there was no compelling evidence.
After being stopped I was arrested for ‘failing, the road side sobriety test (you might have seen it on the Discovery channe).
The arresting officer stated that I had redness in my eyes which did not track properly under a flashlight and that when asked to walk in a straight line barefoot there was a slight ‘wobble in my walk’ (but no giggle in my talk).
There is no road side breathalyser and it is not illegal to refuse to give a bloodor urine sample in Texas.
Upon detention the intoxiliser immediately showed a 0.0% alcohol content and blood and urine tests were negative (as proved after analysis later) for illegal substances.
It took me about two days to get out of jail and another year and $5,000 to get the city attorney to drop the case for which they had no evidence.
I had to provide documented evidence of a squint correction operation and a herniated disk to account for the subjective nonsense of the officer (I could have been convicted on that alone).
And to assuage the concerns of the city attorney who could not be seen to go soft on such a heinous offence, I had to attend alcohol and substance abuse counselling and produce medical reports to show that even though I had no evidence of alcohol or substance abuse I had nonetheless attended a treatment programme for the thing that I did not have.
Now the interesting bit (apart from realising that a very drunk ‘good ole boy’ could easily avoid sanction) was that even though I have no record of any offence in Texas as you say there is legally acquired information that I was once arrested for DWI and had to attend substance misuse counselling because of this.
This information could be lawfully reported and thus do damage to my reputation (a politician might not survive such a revelation).
Is it fair and right that, because of the nature of a particular allegation, I had to spend time and money proving that I was not guilty of (despite the criminal hypothetical presumption of the burden of proof being on the state in a criminal offence) and at some unspecified future date I might have to do the same to disprove an allegation that reported the public record?
Except, if I spent a further $5,000 and a further year I could ’supress the record’ so that public information relating to my reputation damaging non-crime could not be released.
I refused as I felt that my reputation might survive the censure of the people of Texas.
However before I was called to the Bar of England and Wales I had to go before a Judge at my Inn to describe the conditions of my arrest as it could well have prevented my admission.
In answer to Martin C I should state that he laughed and said that Texas doesn’t count!!
But it does, in a further irony I discover that (for other reasons) I am elligible to be admitted to the Texan Bar on application, except for….yes the damage done to my reputation that having been arrested for suspected DWI could cause to an attorney.
I haven’t yet explored whether my non-record may now be surpressed or not.
I understand why, when this debate arises we easily see the mischeif of the chilling of free speech caused by vexatious litigation brought by disreputable, hypocritical, and dishonest chancers but we must be careful not to lose sight of the very real dangers that we all can face from vexatious rumour and gossip or simply informational irrelevance posing as information in the public interest.
My grandfather always said to me ‘be true to your word and to yourself, whatever happens no-one can take that away from you’ which is true and it does give comfort but its a thin one when the only person left believing that truth is oneself.
| 22 July 2008, 4:38 pm |
@mettaculture
US law distinguishes between two types of plaintiffs — public figures and private figures.
The average John Doe is not a public figure, but even a smalltown mayor is a public figure for First Amendment purposes. The distinction is crucial, since only public figures must prove actual malice (the high degree of knowledge or reckless), whereas private figures only must prove both that the statement was false and publish with negligence when the defamation is on a matter of public concern.
A state employee is not necessarily a public figure, even though his salary is paid by the state.
However, even private figures must establish falsity and fault, at least when the defamation is on a matter of public concern. The fault requirement has been constitutionally held to embrace the usual notion of negligence. In this case, publication of any damaging statement on a matter of public concern is not actionable unless the plaintiff can prove 1. that the statement was false; 2. that the plaintiff published the statement with negligence. If the statement is on a purely private matter, the traditional common law rule is applicable, and at least some jurisdictions hold that truth is no defense to a libel claim when the plaintiff is a private figure and the statement is not on a matter of public concern.
Accusing a private person of Witchcraft or pedophilia would likely not be a matter of public concern, so the onus would then be on defendant to establish truth. However, if John Doe was a public figure the public-private concern distinction would kick in and require plaintiff to establish falsity and negligence.
I personally think that having a legal regime granting too much free speech is almost better than having one granting too little liberty, though that undeniably imposes a tradeoff with regard to reputation.
If the pedophilia accusation turns out to be accurate but is never published, due to the chilling effect of an onerous libel law, more children are abused, and conversely publication of an unfounded accusation may still be litigated by plaintiff though it’s still a harder case. Free speech principles should not embrace an unpredictable ad hoc balancing subjecting every supposedly defamatory publication to the subjective whim of unaccountable judges. The virtue of US free speech law is its recognition that limiting ad hoc discretion — ad hoc interest balancing — is better in preventing a tyrannical state from making inroads into liberties where it should never thread.
The ECHR approach is not good, since the case by case balancing allows a judge to inquire into both the form and substance of the publication allowing the factfinder to penalize the defendant for having gratuitously or spitefully published the defamation, where the only relevant consideration should be limited to whether the defamatory statement was 1. On a matter of public concern; 2. Truth or false; 3. made negligently or recklessly -depending on the status of the plaintiff.
| 22 July 2008, 4:59 pm |
@mettaculture
Sad to hear about your experience with the Texas police. Not at least surprising, but expunging false information from the public record may be difficult unless you are willing to spend money on an attorney and sue the city.
However, the public record — assuming that the arrest was not falsely reported as a conviction for DWI — would not claim that you had been convicted but only that you had been arrested. A newspaper using a public record request could therefore not claim derivative immunity for defamation, unless it accurately reported the information.
Now, there may well be a gap in that a public record may be false but nonetheless accurately reported by the press, but there is one important caveat — that the information must have been lawfully acquired — for otherwise the record is not public in the legal sense.
But this is not even how UK libel law works. Publishing old spent convictions may be illegal, even though the plaintiff could and would not claim that he never did it or that he was never convicted. As far I understand UK defamation law, republication of unsealed documents from a thirty year old court proceeding may still be illegal.
The correction of old false information is a problem of, but not an evil to be remedied through tort action against the press. The state alone bear responsibility for cleaning up its records system, and allowing private plaintiffs to make and endrun around free speech is not the solution.
| 22 July 2008, 5:04 pm |
Correction:
I wrote
Accusing a private person of Witchcraft or pedophilia would likely not be a matter of public concern, so the onus would then be on defendant to establish
truth. However, if John Doe was a public figure the public-private concern distinction would kick in and require plaintiff to establish falsity and negligence.
I meant:
Accusing a private person of Witchcraft or pedophilia would likely not be a matter of public concern, so the onus would then be on defendant to establish
truth. However, even if John Doe was a private figure, and the defmation on a matter of public concern, the public-private concern distinction would kick in and require plaintiff to establish falsity and negligence.
| 22 July 2008, 5:33 pm |
The Policy Exchange hosts an event opposing the libel laws. What delicious irony.
http://www.guardian.co.uk/media/2007/dec/13/bbc.television?gusrc=rss&feed=networkfront
Earlier, it had threatened to sue the BBC in a nine-page letter, saying it would pursue litigation “to trial or capitulation by the corporation”.
http://www.bbc.co.uk/blogs/newsnight/2008/05/policy_exchange_dispute_update.html
http://barthsnotes.wordpress.com/2008/07/19/call-for-libel-reform-in-uk-and-usa/
| 22 July 2008, 5:50 pm |
“The Policy Exchange hosts an event opposing the libel laws. “
resistor, what part of “balanced panel” and “debate” did you gloss over in your rush to post well-researched non sequiturs.
They hosted a PANEL who DEBATED the issue, not a “an event opposing the libel laws”.
| 22 July 2008, 6:19 pm |
Insider, I do not see why I should respond to anonymous insinuations but I can tell you there is no tension at all. If Indigo has anything in Westminster (and it does not at present), I do not work on it.
| 22 July 2008, 6:47 pm |
Brett- thank you for pointing out to resistor what is clear to everyone else. But you have momentarily forgotten that minds like resistors are only capable of simple binary notions. For war, against war; that kind of thing.
| 22 July 2008, 7:38 pm |
mettaculture: what an appalling story about your Texas experience. I can vouch for the way you can get away with those non scientific drunkeness tests. Way back in SA there was a senior prosecutor we all knew with a drink problem who was stopped for drink driving on the way back from the prosecutor’s Xmas party. He was drunk. He refused to take the test (can’t remember if it was blood or breathalyser,) and was able to stand on one foot with his eyes closed, walk the line and explain away the nystagmus. He got away with it and later went to the bar (as an advocate, I mean).
| 22 July 2008, 8:38 pm |
“Way back in SA there was a senior prosecutor we all knew with a drink problem who was stopped for drink driving on the way back from the prosecutor’s Xmas party.”
This scenario repeated itself recently when the chief of the Metro Police crashed his car while drunk while returning from a function. His solution was to get his minders to threaten all witnesses, including apparently the rank-and-file police officers who arrived to investate. He was in good company though, not long afterwards a Supreme Court Judge was captured on a mobile phone video in a drunken rant after crashing his luxury car into someone’s garden wall.
| 22 July 2008, 9:12 pm |
Ahead of my comments, I must thank Ami for an illumin
Very interesting. Having been sued more than a few times I can confirm that newspapers’ first instinct is often to settle, and that this is always on financial grounds.
I think it might be a mistake to abolish conditional fees, one effect of which has been to empower people who have been badly treated by the papers but would previously have found it next to impossible to sue - Robert Murat being a recent example.