Defending the Fifth Estate


8:02 pm - July 15th 2008

by Unity    


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Britain’s libel laws have long been a national disgrace. In the Internet age they have now become an international scandal, raising sufficient concerns amongst our American cousins that Senator Joe Lieberman (Ind) and Representative Peter King (Rep) have found it necessary to introduce new legislation into the US Congress to protect the freedom of speech that the US affords it citizens under the First Amendment from the rampant growth in libel tourism engendered by our own laws.

Think about that for a second and what is says about Britain’s libel law. Two American congressmen have become so worried by the pernicious and chilling effect of our libel and defamation laws on freedom of expression that they are steering legislation through congress to preclude the possibility of US citizens being sued in any jurisdiction that lacks the same degree of legal protection for free speech as exists in the US, i.e. the UK. Is that not cause for shame?

Clearly, our politicians don’t think so. Despite the Law Commission having recommended changes to the UK’s libel laws to protect Internet Service Providers as long ago as 2002, the government has done nothing to address its findings. If anything, both our government and the European Union have gone in the opposite direction, citing national security, terrorism, and the omnipresent threat of vicarious liability and cripplingly expensive litigation as leverage against ISPs in order to compel them to police the activities of their users, often at the behest of wealthy vested interests from the recording and film industries.

What we are seeing is the ever-creeping privatisation of internet censorship in a manner calculated to circumvent the heavily qualified legal protection of free expression afforded by article 10 of the European Convention on Human Rights. While the state and its many and varied public institutions and authorities are bound to observe, and operate within, the rights afforded to citizen’s under ECHR, private businesses are under no such obligation whatsoever, leaving citizens with little or no effective means of redress should an ISP cave-in, as they invariably do, to threats emanating from wealthy would-be litigants. By facilitating private censorship via the civil courts, the state abrogates is duty to protect its citizen’s right of free expression after the fashion of Pilate washing his hands of responsibility for the execution of Jesus – not that I believe the latter to be a historical event, of course, but in this case it makes for useful metaphor.

Liebermann & King’s bill is a response to the case of Dr Rachel Ehrenfeld, the director of the American Centre for Democracy, who, in 2004/5, was sued for libel in the English High Court by three Saudi businessmen, Sheikh Khalid bin Mahfouz and his sons Abdulrahman bin Mahfouz and Sultan bin Mahfouz, who she named as alleged terrorist fundraisers in her 2003 book, “Funding Evil: How Terrorism is Financed and How to Stop It“. Although the book was never published in the UK, Mafouz was permitted to sue Ehrenfeld for libel in an English court on the strength of 23 copies of the book being sold to UK residents via the Internet. Ehrenfeld, who has refused throughout to recognise the UK’s claim to jurisdiction, failed to attend a hearing in May 2005 to defend herself, at which a default judgement was entered against her and she was ordered by Justice Eady to pay £10,000 in damages to each of the plaintiffs together with a further £80,000 in costs.

The Ehrenfeld case has already prompted a three-year long counter-suit in the US courts in which Ehrenfeld, with the support of numerous US media organisations, sought to establish that Justice Eady’s ruling was unenforcable in a US court and the book was not libellous under US law. When that case failed, on a question of jurisdiction – the merits of Ehrenfeld’s arguments were not addressed in the judgment -members of the New York State legislature introduced a ‘libel terrorism’ bill, which came into effect in May of this year and which bars New York courts from enforcing a foreign libel judgment unless the country where it was decided grants the same or better protection as US standards for freedom of speech and it expands an individual’s ability to have a court declare a foreign libel judgement invalid in New York. Without this last provision, authors could find their work unsaleable due to their having a foreign (i.e. non-US) libel ruling hanging over their head.

Britain has become the jurisdiction of choice for wealthy would-be litigants in the words of journalist, Geoffrey Wheatcroft, due to the UK’s Libel Laws having…

…always been heavily weighted in favour of the plaintiff. Unlike the defendant in a criminal case or other civil suits – or in a US libel action – he is assumed to be in the wrong, and must prove that “the words complained of” are true. Under “no win, no fee”, the plaintiff is gambling someone else’s money, while the defendant is on a hiding to nothing. “True as to fact or fair as to comment” are the classic defences, but fair comment is subjective, and any attempt to justify or prove truth can be held to aggravate the gravity of the libel. And a defendant is at the mercy of the caprice of juries and the malice of judges.

Wheatcroft omits the final, critical factor; Britain’s common law doctrine of ‘multiple publication’, which is based on a near 160 year old ruling in the case of the Duke of Brunswick v Harmer, one which holds that each individual publication of a libel gives rise to a separate cause of action, as opposed to the single publication rule adopted by the US, in which only the first publication of a libel is actionable.

It is this archaic and perverse ruling that permits a UK court to claim jurisdiction over material published anywhere in the world on the premise that it is ‘published’ in the UK on each and every occasion that it is read by anyone on British soil – quite literally, in the case of a blog, any occasion on which an article, such as this one, is downloaded to a browser on a PC in the UK then, if the content is libellous, the article is actionable in a British court, regardless of where in the world it was first published. Without this precedent, the continued relevance of which has been widely challenged for a number of year, the Ehrenfeld case could never have been brought before a British court.

In the same article, linked above, Wheatcroft proffers with telling observation:

In Britain, we now have the worst of all worlds. Obscure people are hounded by the gutter press, but the libel laws shield “malefactors of great wealth” from criticism and make our courts a playground for the international rich.

All of which is true and yet, despite the Law Commission’s recommendations on the status of ISPs and the trenchant criticism of Britain’s libel laws mounted by the press, lawyers, judges and – now – bloggers, the govenment continues to sit on its hands and do nothing, aided and abetted, it has to be said, by a mainstream press that, although periodically inclined to bare its teeth, is ordinarily too supine in its dealings with the government on what should be a touchstone issue for press freedom in Britain.

Britain’s libel laws need to be reformed, and it should go without saying that this government, or any future one for that matter, could do much to increase its popularity out here in cyberspace if only it were to bring forward the right package of measures, which, as a minimum, must include:

1. Common carrier status for ISPs and webhosts.

It is fundamentally unfair, not to mention impractical in the extreme, to hold Internet Service Providers and webhosts liable for content published on their servers where all they provide is a web hosting package. Removing liability from ISPs will immediately end the practice of would-be litigant targetting them as the weak link in the chain, in the knowledge that they’ll roll-over rather than sustain the costs of defending themselves for the sake of blogger with a £5-10 a month hosting account.

2. Website and forum operators and bloggers to be exempt from liability for user comments provided that they take no active part in the publication of those comments.

In short, if you run and open and unmoderated comments facility or forum then you should not be held liable for comments posted by a third party as you have had no part in their publication. In the case of a moderated forum or comments facility in which user comments are published only after approval by a moderator, then by intervening in the publication process in advance of comments going on public show you become the publisher and have a duty to check that comments you approve are not libellous.

3. Take-down notices for ‘libellous’ content to be issued only by a competent authority (i.e. a court).

Presently, ISPs can avoid liability for third party content only if they comply with a ‘take-down’ notice issued by a complainant. In effect, someone writes to/emails the ISP to complain that a comment or article is libellous and if the ISP goes over the site owners head and unilaterally removes the material then its own back is covered, leaving the site owner then to argue the toss with the ISP if they feel that they’ve been treated unfairly or that the complaint is without merit. With the best will in the world, ISPs are not going to competent to make reasonable judgments on complaints of libel and even if they run the complaint up to a lawyer (at their own cost) there’s every likelyhood that they’ll be advised to comply with the take-down notice just to be absolutely safe.

As a matter of principle, there should no censorship of any online material on the back of a claim of libel without that claim being tested in court.

(It’s worth noting that none of these measures are necessary if you host a site on a US server, where s230 of the Communications Decency Act exempts ISPs and site owners/operators from any liability for third party comments.)

4. Repeal the Brunswick ruling.

On its own, repealing the multiple publication rule would put an end to libel tourism by preventing would-be foreign litigants from using the multiple publication rule to gain access to a British court in order to sue a foreign publication. Only if the author of the allegedly libellous material is a UK resident or the offending material is actually published in the UK would litigation be possible.

5. Extend the scope of permitted statutory defences for libel.

English libel law allows for only three clear lines of defence; justification (i.e. the truth), fair comment (that a a statement was one a reasonable person could have held) and privilege, which covers the reporting of the proceedings of parliament and the courts and includes fair reports of allegations in the public interest – this is where the narrow ‘Reynolds Test‘ comes into play.

There is, in the interests of clarity, a strong argument for giving the Reynolds Test statutory force and making explicit the permissibility of the public interest defence, much as it would not be unreasonable for a revised defamation law to explicitly acknowledge that statements made in good faith and in the reasonable belief that they are true are not actionable, the principle of most relevance to the recent vexatious threat of libel action against Harry’s Place – although David might easily consider that the defence that holds the the plaintiff is incapable of further defamation (i.e. that they have no reputation to defend) might be equally relevant.

Expressions of opinion are, similarly, not actionable in some jurisdictions, although not in the US where the Supreme Court considers that a distinction between opinion and fact is unnecessary in light of the protections offered by the First Amendment, and it also possible to defend a libel action on the basis that a statement or allegation is so absurd or outrageous as to be incapable of being defamatory because no reasonable person would take it seriously, although this point seems to have got lost in the case of Gina Ford vs Mumsnet in which Ford complained about a comment that accused her of “strapping babies to rockets and firing them into south Lebanon”. Ford is yet another serial litigant, going so far as to intimidate The Times into withdrawing a perfectly reasonable commentary on the iniquitous nature of Britain’s libel laws, by Heather Brooke, for no other reason than the fact that Brooke chose to reference Ford’s action against Mumsnet to illustrate her actual point, that the [libel] law is an ass.

6. Remove the presumption of guilt against defendants in libel actions

Almost uniquely in English law, libel actions place the defendant under a de facto presumption of guilt, one which requires them to prove their innocence while the plaintiff need only assert that a statement is libellous without the need to provide evidence to prove that alleged libel in untrue – and yet, even with this iniquitous reversal of natural justice in their favour, this still hasn’t prevented a number of high profile litigants from attempting to perjure their way to a pay-out.

If nothing else has convinced you, this should serve as proof positive that there is something fundamentally unjust and disgraceful at work here.

In conclusion, one can hardly top George Monbiot’s observation, from today’s Guardian:

English libel law is an international menace, a national disgrace, a pre-democratic anachronism. It defends crooks, terrorists and tyrants from investigation. It threatens the free speech of people all over the world and causes untold damage to the reputation of this country. And neither the British government nor the British parliament gives a damn.

But they – the government, and parliament, of course – should give a damn because even in the face of the most pernicious and unjust libel laws to be found in any Western liberal democracy, dissent finds a way of expressing itself.

In defending themselves against the threat of vexatious litigation, bloggers in the UK have turned to non-violent civil disobedience, internet-style, spontaneously evolving a collective defence against such threats that, in some quarters, has come to be called a ‘Spartacus Action’ after the famous scene in Kubrick’s film in which survivors of Spartacus’s defeated gladiator army stand, one by one, to declare that they are Spartacus.

In short, Britain’s political bloggers have decided that, whenever free speech is threatened, it is better to hang together than hang separately and, as the libel ‘specialists’, Schillings, found to their embarrassment when trying to shut down Craig Murray’s blog, last year, if you’re trying to kill a story then the very last thing you should do is start threatening bloggers with litigation. Few things, if any, offer more of a guarantee that bloggers will close ranks and spread a story as widely as possible, to the extent that it is now considered a matter of simple good manners that whenever a blogger is threatened in such a manner, others should do everything possible to spread the ‘offending’ statement to which the threat relates as widely as possible.

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About the author
'Unity' is a regular contributor to Liberal Conspiracy. He also blogs at Ministry of Truth.
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Reader comments


I’m sure many lawyers could offer you an opinion, for a fee, of course.

Hmm, I agree entirely with everything apart from point 6, by which I’m not entirely convinced. If someone publishes something that is true but disputed by a libel action as defamatory then they ought to be able – should they pursue the defence of it being true, which they do not have to do – to prove that it is true. I think the threat of perjury and the need to demontrate that the statement is defamatory should be enough to prevent this being abused by the plaintiff. Given that cases are settled on the balance of probabilities anyway, I’m not sure the distinction isn’t more subtle than accurate.

I am, of course, open-minded on this. I’m not really entirely satisfied by my own views, either.

I would be very, very suspicious of anything Senator Joe Lieberman is in involved in. I suspect that his regular appearances on Fox news and the other corporate News networks would tell you who his real backers are.

As for American free speech, ask Mr Lieberman if he agrees with George W Bush and his free speech zones?……… that were set up to restrict any free speech in the ear shot of the President.

This is all about Big Corporates being able to smear Liberals, and not have to worry about Libel.

Dan: The point 6 is carefully worded, it always is. It claims the “defendant”, i.e. someone who has said something about someone, is assumed guilty. Of course the flip side is that it ensures that the person being accused of something by the “defendant” keeps their presumption of innocence.

It’s obviously hard to balance, and there are issues with how much legal proceedings cost, but I can’t find myself feeling sorry that people who make claims about other people have to actually prove that it is the case. As was shown as a perfect example in another thread, if someone accuses you of being a paedophile who sexually molests youngsters why is it that you should have to prove that what is said isn’t true? How can you prove what has been said isn’t true? The practicalities of Libel mean that it is much easier to tell someone “don’t say something about someone unless you can back it up” rather than “Hey everyone, take video diaries, witness statements and any other notes for all of your life just in case someone calls you something you aren’t”

Excuse me while I cry a river for those too inept to back up what they say, and also at the irony of those like Unity believing that this aspect of Libel law is negative when so many “Libel” proceedings against bloggers have been thwarted at the earliest stage simply by showing that the “defendant” doesn’t have any proof of what they’re saying.

Barack Obama said two years ago that “the CEO of Aegis Defense Services Tim Spicer has been implicated in a variety of human rights abuses around the globe. Given his history, I agree that the United States should consider rescinding its contract with his company.”

I wonder when he will be getting his letter from Schillings?

6. douglas clark

Unity,

I am all for the anarchy of web sites with principles, such as this one. Web sites without principle, I am not so sure about.

What I desperately do not want to see are folk like this:

“Offended by what you saw on an internet web site?

Call us

Mr Smith was called a ‘complete and utter cunt’.

“Thanks to our intervention Mr Smith now has a cheque for 7,000 pounds. Call us on 0898….”

If you’ve ever seen Jean Paul Satre’s ‘Hell’ which is afternoon TV, there are evil folk working to take us there. They are called lawyers.

Lee:

As the old saying goes, hard case make bad law and the example of someone making a false allegation of paedophilia is just such an example – remember the test in civil cases is that of a balance of probability, so someone making such a claim is still going to have to provide evidence to back up their position under cross-examination unless the plaintiff turns out to have an undisclosed prior for kiddie-fiddling.

The problem with the existing presumption in libel case is that most effects investigative journalism/whistle-blowing, where the proof necessary to demonstrate the truth of an allegation can all to easily vanish in the gaping maw of a heavy duty shredder. Cases can, therefore, be decided not on the truth but on the ability of a plaintiff to conceal evidence of the truth.

So far as libel cases are concerned, my preference would be that cases start without any presumption, one way or another, forcing both sides to present evidence to support their position if the case rests on the question of the truth or otherwise of an allegation. Juries should also have the option of a verdict akin to the Not Proven verdict in Scottish law, allowing them to hand down a verdict which says, in essence, that the cannot make a determination either way with sufficient confidence to enter a verdict for one of the parties.

Rest easy, Douglas – gratuitous insults and abuse are not generally considered to be defamatory.

Calling someone a cunt is, first and foremost, a matter of opinion and not a matter of fact, and is, therefore, not actionable because an opinion is not falsifiable. Calling someone a cunt, in addition, does not harm their reputation and is, therefore, prima facie not libellous, although if you impute an action on the part of the target in the course of making an insult that may be actionable.

‘Cunt’ is fine on its own – ‘lying cunt’ could get you sued unless, under the current law, you can demonstrate that the individual towards whom the insult is directed is actually a liar.

“where the proof necessary to demonstrate the truth of an allegation can all to easily vanish in the gaping maw of a heavy duty shredder.”

I still have no sympathy for those that whistleblow and “investigate” without shoring up the facts before publishing them. Since when did common sense become optional?

Sally:

Regardless of any ulterior motives Lieberman might be construed as having, his bill is fully consistent with long-standing US practice vis-a-vis the legal primacy of their Constitution and Bill of Rights.

Try reading any of the clarifications, reservations and derogations that the US submit, as a matter of course, when signing up to UN treaties and you’ll see that these all assert that the US constitution take precedence and that any treaty obligations to which the US agrees will be construed and interpreted in line with their Constitution.

Excellent piece, Unity.

Tom,

“I wonder when he will be getting his letter from Schillings?”

Hah!

Do you have a link?

Bensix,

It was in an email response by Obama to a supporter of the Pat Finucane Centre. There is an extract on their website.
http://www.patfinucanecentre.org/

13. douglas clark

Unity @ 8,

Phew!

Still, the principle of keeping lawyers out of our space is important, is it not? And ambulance chasers in particular.

Firstly, I think suggestion number 2 is already the case.

I think “libel tourism” (certainly “libel terrorism”) is something of a misnomer – English courts have jurisdiction if the libel in question ends up in this jurisdiction, which it did in Ehrenfeld’s case, as 23 books were delivered internationally to recipients here, and people accessing the article on the ABC News website from here.

Apparently Ehrenfeld chose not to defend herself because (a) it was prohibitively expensive and (b) she didn’t see why she should have to defend herself since her book was not published within this jurisdiction. Well, I have every sympathy with (a) but not (b), because the law must be taken as we find it, not as we would wish it to be. Fair enough if her lawyers said, “well they aren’t likely to attempt to enforce a default judgement anyway”… not much point in attending an English court. But otherwise it looks a bit like petulance – after all, there wasn’t an issue of proving jurisdiction.

It’s worth reading Bin Mahfouz & Ors v Ehrenfeld & Anor, the judgement (also King v Lewis & Ors), not least because it points out that in a new preface to a subsequent edition of her book, Ehrenfeld wrote,

On October 19, 2004, Khalid Bin Mahfouz commenced legal proceedings against me for libel in a British court. Despite the enormous cost involved, I have decided to take it upon myself to challenge Khalid Bin Mahfouz and provide the UK court with evidence that he, the Muwafaq Foundation, and the NCB have in fact supported Al Qaeda and HAMAS.

However, she did not attend court, let alone provide it with evidence. I’m not sure we have the whole story here (if indeed we ever do).

You really mustn’t say Britain and UK when you are referring to English law.


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