Freedom

For all the flaws in English libel law, we should be grateful for small mercies. At least now we've moved further to ensuring libel is no longer a criminal offence in this country. The House of Lords has voted on a government amendment to the coroners and justice bill to repeal the laws of criminal libel, seditious libel and obscene libel. With last year's repeal of blasphemous libel, this completes the removal of the four ancient offences that blighted our record on free speech.

It's true that none of these charges had been used for many years; nonetheless, they sat on the statute books like ugly toads, occasionally uttering a warning croak, echoed by even uglier and rather busier toads around the world. Criminal libel laws still apply in the majority of the world's states to the detriment of free speech and the free flow of information. And let's be clear: these laws are not used to protect anyone's reputation, they are used to silence dissent.

Yet some questions remain. Now that libel is a purely civil affair, will the government turn its attention to meaningful reforms in this area, to ensure that the balance between free speech and reputation is more appropriately set? Will the government also review its counter-terrorist legislation to ensure that we are free to express our fundamental (even fundamentalist) beliefs without risking criminal charges? Does the repeal of obscene libel laws mean that we are more or less sexually liberated – given new restrictions on extreme pornography? And will the Religious Hatred Act allow us to speak out about religious absurdities without fear of being prosecuted for causing offence?

...Read the full article

The House of Lords debated on the 28th October 2009, Lord Lester's clause included in the Coroners and Justice Bill to abolish blasphemy in Northern Ireland.

The amendment was withdrawn. This means that the law stands as it is.

The feeling was that it is an issue that should be debated by the Northern Ireland Assembly rather than Westminster.

Libel, for those who aren't law students, lawyers, or Guardian readers with Twitter accounts, is a type of law which says you can't say untrue things about people, and if you do, you have to pretty much crush them under a ton of money to make up for it. Well, that's what it's supposed to do. However, in the last 15 years or so, powerful people have started using Britain's archaic and creaking libel system to stop anyone saying anything about them, true or not. I was the victim of this law.

For those not working in the slowly dying print industry, libel is the big bad nightmare of most of the publishing companies we have left. The dull money men fear and hate libel in the UK - it is incredibly expensive to defend a libel action, and absolutely catastrophically expensive if you lose.

...Read full article

Britain's reputation for libel tourism is driving American and foreign publishers to consider abandoning the sale of newspaper and magazines in Britain and may lead to them blocking access to websites, MPs have been warned.

Publishers, human rights groups and campaigners have expressed substantial and increasing concern because comments that would be protected under the freedom of speech in the US constitution are actionable in London courts once published here, no matter how small the readership.

A memorandum submitted to a Commons select committee, ahead of a meeting with US publishers, states: Leading US newspapers are actively considering abandoning the supply of the 200-odd copies they make available for sale in London – mainly to Americans who want full details of their local news and sport. They do not make profits out of these minimal and casual sales and they can no longer risk losing millions of dollars in a libel action which they would never face under US law. Does the UK really want to be seen as the only country in Europe – indeed in the world – where important US papers cannot be obtained in print form?

The submission is on behalf of a number of US media outlets, including the Los Angeles Times, the New York Times and MacMillan (US), as well as Human Rights Watch, Global Witness US and Greenpeace International.

After a year-long Inquiry, English PEN and Index on Censorship have concluded that English libel law has a negative impact on freedom of expression, both in the UK and around the world. Freedom of expression is a fundamental human right, and should only be limited in special circumstances. Yet English libel law imposes unnecessary and disproportionate restrictions on free speech, sending a chilling effect through the publishing and journalism sectors in the UK. This effect now reaches around the world, because of so-called libel tourism, where foreign cases are heard in London, widely known as a town named sue. The law was designed to serve the rich and powerful, and does not reflect the interests of a modern democratic society.

In this report, we cut through the intimidating complexity of English libel law to show how the legal framework has become increasingly unbalanced. We believe that the law needs to facilitate the free exchange of ideas and information, whilst offering redress to anyone whose reputation is falsely or unfairly damaged. Yet our inquiry has shown that the law as it stands is hindering the free exchange of ideas and information. We repeatedly encountered the same concerns, expressed by lawyers, publishers, journalists, bloggers and NGOs, who have no wish to abolish libel law, but know from experience of its chilling effect on legitimate publication.

In response to their concerns, which are set out below, we offer the following recommendations to restore the balance between free speech and reputation:

1. In libel, the defendant is guilty until proven innocent

We recommend: Require the claimant to demonstrate damage and falsity

2. English libel law is more about making money than saving a reputation

We recommend: Cap damages at £10,000

3. The definition of publication defies common sense

We recommend: Abolish the Duke of Brunswick rule and introduce a single publication rule

4. London has become an international libel tribunal

We recommend: No case should be heard in this jurisdiction unless at least 10 per cent of copies of the relevant publication have been circulated here

5. There are few viable alternatives to a full trial

We recommend: Establish a libel tribunal as a low-cost forum for hearings

6. There is no robust public interest defence in libel law

We recommend: Strengthen the public interest defence

7. Comment is not free

We recommend: Expand the definition of fair comment

8. The potential cost of defending a libel action is prohibitive

We recommend: Cap base costs and make success fees and After the Event (ATE) insurance premiums non-recoverable

9. The law does not reflect the arrival of the internet

We recommend: Exempt interactive online services and interactive chat from liability

10. Not everything deserves a reputation

We recommend: Exempt large and medium-sized corporate bodies and associations from libel law unless they can prove malicious falsehood

The number of defamation cases that reached the high court surged by 11% in 2008 to a four-year high, as foreign claimants took advantage of the UK's tougher laws to seek libel tourism awards from publishers.

A total of 259 high court defamation writs were issued last year, according to a review by the law firm Reynolds Porter Chamberlain, the most since 2004.

These figures show that the UK remains a very attractive jurisdiction for libel claimants, said Jaron Lewis, a media partner at RPC. This is because our laws are very pro-claimant, making it difficult for the media to defend claims, even when they are unmeritorious.

RPC added that most of the cases that did reach the high court were either settled before a trial began, or withdrawn, often because the costs associated with an action, which can run into hundreds of thousands of pounds, were too high for publishers to risk.

For some publishers the cost of losing a libel trial, or even winning one, might put them at risk of closure, said Lewis. It is not the level of damages so much as the requirement to pay a claimant's legal costs, which will often be a significant six-figure sum.

However, RPC said that if the figures were seen in the wider context of the explosion of news content across the internet, the number of libel claims actually declined significantly, in relative terms, during the past decade.

Although the figures have gone up by 11%, the volume of material being published, particularly on the web, has increased at a much higher rate, said Lewis. So the proportion of articles resulting in libel claims is lower now than 10 years ago.

Jack Straw is preparing to draw up proposals for wholesale reform of England's libel laws.

The justice secretary says the large legal fees involved in defamation cases in English courts are jeopardising freedom of speech, potentially curbing vital debate by scientists, academics and journalists.

The huge payouts awarded to individuals who successfully claim their reputation has been damaged has made London the libel capital of the world.

Last night, Straw warned that the bonanza for lawyers and claimants was having a chilling effect and pledged radical changes. It is very important that citizens are able to take action for defamation if they are seriously defamed. But no-win, no-fee arrangements have got out of hand. The system has become unbalanced, he said.

In measures that are expected to win cross-party support, Straw believes individuals and media groups must have a clearer right to express their views, as in other countries.

A free press can't operate or be effective unless it can offer readers comment as well as news. What concerns me is that the current arrangements are being used by big corporations to restrict fair comment, not always by journalists but also by academics, he said.

He also wants to see new restrictions on no-win, no-fee arrangements and curbs on legal fees involved in fighting cases. In many cases, lawyers who win libel cases make 10 times the money their clients are awarded. He cited one case in which a regional newspaper was forced to pay damages of £5,000 to a plaintiff but £50,000 to the plaintiff's lawyer.

The proposed changes are still under discussion, but Straw is keen to begin the process, which could involve a new libel bill, as soon as possible.

Update: Working Group

2nd December 2009. See article from indexoncensorship.org

Justice Secretary Jack Straw is to establish a working group to examine England's controversial libel laws. The group will consist of media lawyers, editors and experts. The government has also said it will respond to English Pen and Index on Censorship's libel report, along with recommendations by the Culture Media and Sport Select Committee within two months of the publication of the Select Committee report.

The working group is expected to convene in January 2010.

A British doctor who is being sued for libel after criticising an American company's research has pledged to turn the action into a test case for freedom of speech.

Peter Wilmshurst, a consultant cardiologist at the Royal Shrewsbury Hospital, told The Times that he aims to use a public-interest defence to fight the claim from NMT Medical and establish the principle that scientists may engage freely in academic debate.

He said he was prepared to risk losing his home to take the case to trial because victory would set a precedent protecting other scientists from legal bullying. Dr Wilmshurst said: I have got a responsibility to fight this. There is a fundamental principle of science at stake here. People have to be free to challenge research.

There is growing concern about the use of England's draconian libel laws to stifle expert scrutiny of scientific evidence. Simon Singh, the science writer, has been sued for libel by the British Chiropractic Association over an article in which he questioned the evidence that spinal manipulation could treat childhood conditions such as asthma and colic.

Many scientific journals admit that they now seek legal advice before publishing some academic papers, and several websites have withdrawn scientific articles claimed as defamatory because of the prohibitive costs of defending such actions.

Dr Wilmshurt's case began with his involvement in a study of a medical device made by NMT called Starflex, designed to close a type of hole in the heart known as a patent foramen ovale (PFO). The study investigated Starflex as a potential treatment for migraine, which is significantly more common among people with a PFO, but failed to find benefits.

At a cardiology conference in Washington in 2007, Dr Wilmshurst criticised NMT in relation to the research. His comments were reported by Heartwire, a website, prompting NMT to sue him.

Dr Wilmshurst and his solicitor, Mark Lewis, will meet NMT's legal team next month for mediation. If no deal is reached, the case is expected to go to trial.

Lord Lester, the leading human rights barrister, is drawing up a defamation reform bill, which would prevent lawyers pocketing excessive fees and would also stop foreigners with tenuous links to this country from using British libel laws to silence critics.

Last week Jack Straw, the justice secretary, signalled that Labour would support reform.

Lester, a Liberal Democrat peer who has been consulting senior figures in all parties, believes that his moderate package will secure widespread support and wants a package of proposals available for whoever wins the election. His bill would:

• Reform the system of no-win no-fee litigation which makes it cheap for people to bring libel actions but expensive for publications to defend themselves.
• End the principle of multiple publication which means that internet sites can be sued over old, archived articles and instead introduce a single publication rule as in the United States.
• Prevent foreigners from suing in the British courts unless they can demonstrate that they have suffered real harm in Britain.
• Give publications a stronger defence against legal action if they can demonstrate that the article was in the public interest.

Lester said he also wanted to end the imposition of cash damages where someone successfully sues. Instead, he insisted that in most cases an apology from the publication should be enough.

England’s libel laws are unjust, against the public interest and internationally criticised — there is urgent need for reform this is the message performers, writers, poets, patient groups, legal experts, broadcasters, journalists and others represented by the Coalition for Libel Reform (English PEN, Index on Censorship and Sense About Science) are sending to politicians urging them to support a bill for major reforms of the English libel laws now, in the interests of fairness, the public interest and free speech.

At the launch of the National Campaign for Libel Reform on Thursday, performers and others urged the public to sign a petition demanding reform of the libel laws, highlighting that for the first time in over a century we have an opportunity to change our unfair and repressive libel laws.

It has been 18 months since I was sued for libel after publishing my article on chiropractic. I am continuing to fight my case and am prepared to defend my article for another 18 months or more if necessary. The ongoing libel case has been distracting, draining and frustrating, but it has always been heartening to receive so much support, particularly from people who realise that English libel laws need to be reformed in order to allow robust discussion of matters of public interest. Over twenty thousand people signed the statement to Keep Libel Laws out of Science, but now we need you to sign up again and add your name to the new statement.

The new statement is necessary because the campaign for libel reform is stepping up a gear and will be working on much broader base. Sense About Science has joined forces with Index on Censorship and English PEN and their goal is to reach 100,000 or more signatories in order to help politicians appreciate the level of public support for libel reform. We have already met several leading figures from all three main parties and they have all showed signs of interest. Now, however, we need a final push in order to persuade them to commit to libel reform.

Finally, I would like to make three points. First, I will stress again - please take the time to reinforce your support for libel reform by signing up at www.libelreform.org. Second, please spread the word by blogging, twittering, Facebooking and emailing in order to encourage friends, family and colleagues to sign up. Third, for those supporters who live overseas, please also add your name to the petition and encourage others to do the same; unfortunately and embarrassingly, English libel laws impact writers in the rest of the world, but now you can help change those laws by showing your support for libel reform. While I fight in my own libel battle, I hope that you will fight the bigger battle of libel reform.

Foreigners could be barred from bringing libel actions with tenuous links to the UK under reforms being considered by ministers.

Jack Straw, the justice secretary, is to appoint an expert panel to examine how to prevent overseas litigants from using British courts for defamation cases with little connection to this country.

The new working group of lawyers, academics and newspaper editors will report by mid-March, with the aim of implementing some recommendations before the general election. They will be asked to consider nine areas of concern about Britain's libel laws, with so-called libel tourism the priority. Related Links

In an interview, Straw said: Libel law is not in the right place — there cannot be any disagreement with that. This group will work fairly swiftly to get a report out before parliament is dissolved.

Straw said he was disturbed by the use of UK courts to silence doctors and scientists. It is very worrying, he said. There ought to be open and robust debate in the scientific and medical world. If someone who has expertise in a field believes a piece of medical equipment is not doing what it is supposed to do, and is claimed to do, they ought to be free to say so.

Straw is also holding discussions with officials in Brussels about libel jurisdiction in Europe. He said the European commission had acknowledged that the system was operating unsatisfactorily.

The new panel will be asked to consider the case for capping the level of damages that courts can award, and whether a libel tribunal should be established to resolve defamation claims out of court. The experts will examine how to make it easier for scientists, authors and commentators to defend their words on the basis of fair comment, or in the public interest; and whether the burden of proof should be shifted from the defendant to the litigant.

Large and medium-sized corporations may have to prove malicious falsehood to succeed in a defamation action, while smaller firms and individuals could have to provide more proof that their reputation has suffered. The panel will also consider whether there should be special rules for internet blogs.

Straw hopes that most reforms can be implemented through secondary legislation, avoiding the need for a time-consuming new parliamentary bill. Libel lawyers, however, insist that the system works well and accuse the government of trying to curry favour with the media ahead of the general election.

Question: what do McDonald's, Monsanto and Trafigura have in common? Answer: they've all been accused of routinely administering SLAPPS. These are Strategic Lawsuits Against Public Participation — forms of strategic legal intimidation or gamesmanship employed by large corporations against their critics in order to frighten and harass them, and tie them in legal knots. Such actions are also designed to demonstrate to would-be critics the fate that awaits them should they dare to publicise their views.

That SLAPPS frequently involve threatening to sue critics for libel makes it particularly important that Index, Sense about Science and English Pen have followed the example of some Australian states and proposed limiting the ability of corporations and associations to sue, unless they can prove malicious falsehood.

...Read full article

Tougher powers for the Press Complaints Commission and an end to the right of companies to sue for libel will be proposed next week in a long awaited report by MPs. But the much criticised press watchdog will escape calls for its abolition or for any form of state regulation of the press.

The PCC needs a radical shake-up to turn it into a body that is proactive, rigorous and is taken seriously by the public, the Culture, Media and Sport Select Committee will say. New powers could extend to halting the printing of a newspaper edition. John Whittingdale, the committee's chairman, says the watchdog should also have the ability to impose large fines.

The commission has come under fire this week for failing to uphold complaints about a Daily Mail article into the death last October of the Boyzone singer Stephen Gately. The column attracted 25,000 complaints from readers who perceived it to be homophobic. But the PCC said it should be slow to prevent columnists from expressing their views, however controversial they might be. It was a point of principle that newspapers could print views that might offend people, it said.

The complaint made to the PCC that the Daily Mail's column on Gately's death was inaccurate, intrusive and discriminatory was not upheld. Gately died at his holiday home on the island of Majorca. His civil partner Andrew Cowles made a complaint to the PCC about what had been written by the columnist Jan Moir. The PCC said that it could fully understand why Cowles and a record number of complainants were upset, but ruled that Moir's comments had not breached press guidelines.

In a second move that will please media organisations, the committee is expected to reject calls by Max Mosley, the former Formula One chief, for victims of media exposés to be notified in advance. There are fears that a requirement for prior notification will lead to judges imposing injunctions that would prevent many investigative stories going to print.

A third key recommendation expected in the report, to be published next week, is that businesses with more than ten employees will lose the right to sue for defamation.

The wideranging report by MPs will cover press standards, privacy, libel and libel tourism, super-injunctions and costs in defamation cases.

When the culture, media and sport select committee began its work more than a year ago, many feared the worst.

Yet the more they probed and the more they heard from organisations defending free expression, the more the MPs began to understand the vital need to distinguish between investigative journalism, a noble cause, and prurient journalism, a less salutary one. Some aspects of the report are disappointing. One that relates to privacy is potentially alarming. On balance though this is an important step forward, giving cross-party support for fundamental change to England's hideous libel laws.

The committee details the enormous costs faced by publications, particularly small ones, in defending themselves. The report criticises law firms for deliberately stringing out suits so they can ratchet up costs and force people into settling and apologising, even where they have nothing to apologise for. It stops short of reversing the burden of proof, but it does suggest reinforcing the defence in court for brave reporting and making it harder for companies to sue to protect their reputations. The committee's chairman, the Conservative MP John Whittingdale, says he and his colleagues were eager to correct the balance which has tipped too far in favour of the plaintiff.

The MPs denounce the ease with which foreign-based oligarchs, sheikhs and their like have used avaricious legal firms and pliant judges to chill the free speech of NGOs, authors and others – so much so that US Congress has considered legislation to protect Americans from British courts. They criticise Jack Straw, the justice secretary, for not tackling the problem of libel tourism, and the damage to the country's reputation, describing the measures taken by US legislators as a humiliation.

...Read full article

See also article from business.timesonline.co.uk

Rules for reporting:

• No legislation on privacy
• Press Complaints Commission to recommend prior notification to the subject of articles, subject to a public interest test
• A new law to clarify Parliamentary privilege and ensure free and fair reporting
• The burden of proof should be reversed in the case of big corporations so that they must prove libel and not the defendant
• Action to curb the use of super-injunctions and research to discover the extent of their use
• A new regulator, a Press Complaints and Standards Commission, with powers to fine and halt publications

Francisco Lacerda, a professor of phonetics at Stockholm University, is one of two scientists threatened with legal action after the publication of a scientific article condemning the use of lie detectors. The Israeli company Nemesysco, which manufactures detectors, has written in a letter to the researchers' publishers that the researchers may be sued for libel if they continue to write on this subject in the future.

One year ago, Francisco Lacerda, a professor of linguistics at Stockholm University, and Anders Eriksson, professor of phonetics at the University of Gothenburg, published an article in the International Journal of Speech Language and the Law, a magazine for voice experts working for the police and security services. The article entitled "Charlatantry in forensic speech science" gave an overview of the last fifty years of research in the field of lie detectors. The article's conclusion is that there is no scientific evidence to show that lie detectors actually work.

...Read the full article

A Statutory Instrument that would have reformed costs in English libel cases was stalled at committee stage tonight after several Labour MPs voted against their party whip to bock a reduction of lawyers' success fees from a 100%mark-up to 10%.

Chris Mullin, Peter Kilfoyle, Tom Watson and Jim Sheridan and Conservative Julie Kirkbride acted against the move. Watson and Kilfoyle have both taken advantage of Conditional Fee Agreements in past court cases. Other Conservative MPs abstained from the vote.

The proposal will now go to a full parliamentary vote.

All 3 major political parties in the UK are committed to libel law reform.

Dominic Grieve, the Shadow Justice Minister, told us on Friday that the Conservative party is committed, if elected, to undertaking a fundamental review of the libel laws with a view to enacting legislation to reform them. This reform could best be done by means of a separate Libel Bill and this is the preferred approach for us.

The Lib Dems made libel law reform a policy in September 2009 after Professor Richard Dawkins addressed their party conference and Jack Straw committed Labour to reforming English libel law at our mass-lobby of Parliament on 23rd March.

The Labour manifesto, released today, pledges To encourage freedom of speech and access to information, we will bring forward new legislation on libel to protect the right of defendants to speak freely.

A Saudi businessman who is being sued over a suspected multibillion-dollar fraud is invoking English libel law in what experts say is the latest high-profile example of libel tourism.

Maan al-Sanea is being sued by banks in New York, Dubai, London and the Cayman Islands over claims he is responsible for more than $15bn of bad debt in banks in Bahrain. But reports of allegations in papers around the world, including the Wall Street Journal and the The National in Abu Dhabi, have resulted in threats of libel action by lawyers in London, the Guardian has learned.

Journalists covering the case, which could have damaging repercussions for Saudi Arabia's business reputation, have received letters from the law firm Harbottle & Lewis warning of a libel suit in the high court unless articles about Sanea are withdrawn.

The right of free speech is a central democratic principle. But so too is the right of individuals to be protected against libel and defamation of character. The job of the legislature and judiciary is to balance those conflicting freedoms. In England, that balance has become skewed: libel law gives robust protection to reputation, but it increasingly does so at the expense of freedom of speech.

The Government is aware of the problem. Nick Clegg has indicated that the coalition will review the libel laws. It is fortunate, then, that on Thursday a Private Member's Bill will be published that offers an ideal model for reform. Lord Lester of Herne Hill will bring a Defamation Bill before the House of Lords that aims to modernise and simplify the law in several respects. It would bring up to date the defences available for those being sued for libel. It would require claimants to show real harm before they could sue. It would demand that corporate claimants must prove actual damage. And it would make the normal mode of trial one of a judge sitting alone, rather than a jury.

Lord Lester's Bill also contains measures to cope with the advent of the internet. At the moment, foreign claimants are pursuing cases in the UK courts based on the fact that articles published on the world wide web can be downloaded here. Every time an article is downloaded, it constitutes a new publication, which resets the one-year limitation period for libel actions, a law that dates from 1849, when the Duke of Brunswick made law by sending his valet to obtain a 17-year-old back copy of the Weekly Dispatch to sue for defamation.

This is not a Bill to promote irresponsible journalism, or to placate newspapers whingeing about libel. It seeks to restore the right balance between those who pursue public interest reporting and those who seek to defend themselves from malicious attacks. If nothing is done the result will be increasing self-censorship, because of the uncertainty over what constitutes fair comment and because of the size of damages that can be awarded, which Lord Lester's Bill seeks to limit.

Anthony Lester QC writes:

[Today] I will introduce the second reading debate on my Private Members Defamation Bill. This is a unique opportunity for Parliament to reform our antiquated and unjust libel laws.

I am grateful for your support - 100s of you have spoken out and written about this; you have told the Libel Reform Campaign about threats of libel action which lead you to remove articles, blogs, reviews, academic papers, reports and books; your organisations have joined the campaign and 100s of MPs signed up for reform after you wrote to them.

Senior judges recognise the pressing need for reform - the Court of Appeal in Simon Singh’s libel case highlighted how ludicrous it is that finding out if he even had a defence cost Simon £200,000 and 2 years before he got to court. All of this has drawn attention to the profound problems with the law as it stands that need to be addressed by legislation from Parliament.

Ministers have said they are to reviews the laws of libel with the aim of bolstering freedom of expression and the integrity of academic research.

Justice Minister Lord McNally said the coalition would publish a draft bill for consultation early next year. The Conservatives and Lib Dems included a commitment to reform the laws on libel and defamation in their coalition agreement in May.

Debating a private member's bill on the issue in the Lords, Lib Dem peer Lord McNally said ministers intended to bring forward legislation of their own next year: Freedom of speech is the foundation of democracy

We need investigative journalism and scientific research to be able to flourish without the fear of unfounded, lengthy and costly defamation and libel cases being brought against them.

We are committed to reforming the law on defamation and want to focus on ensuring that a right and a fair balance is struck between freedom of expression and the protection of reputation.

The Index of Censorship said changes were needed to help foster academic debate and should not be seen as a licence for the media to publish what they liked. We are absolutely delighted about this but obviously there is a long way to go, said its editor Jo Glanville: There will be consultations and nobody knows what this will end up looking like. But it is a real triumph.