free speech is not for sale

8/3/2019 Free Speech is Not For Sale

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THE IMPACT OF ENGLISH LIBEL LAW ON FREEDOM OF EXPRESSION


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TERMS OF REFERENCE

EXECUTIVE SUMMARY

BALANCING FREE SPEECH AND REPUTATION

RESTORING THE BALANCE

RECOMMENDATIONS

APPENDIX: CASE STUDIES

ACKNOWLEDGMENTS

CONTENTS

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2

3

7

11

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1. The Inquiry was set up to assess the impacto English libel law on reedom o

expression, both in the UK and

internationally

2. The Inquiry was conducted in partnership

by English PEN and Index on Censorship

3. Index on Censorship promotes the public

understanding o reedom o expression

through the Writers and Scholars

Educational Trust (registered charity,

number 325003)

4. English PEN is a registered charity

(number 1125610), with the object o

promoting the human rights o writers,

authors, editors, publishers and other

persons similarly engaged throughout

the world

5. The Inquiry was overseen by a Committee

representing both organisations

6. The Inquiry held roundtable meetings with

(1) lawyers, (2) editors, (3) publishers and

(4) bloggers

7. Members o the Inquiry Committee also

met a number o stakeholders individually

8. Members o the Inquiry Committee carried

out research, through print and online

sources and by attending relevant

conerences and seminars

9. This Report represents the conclusions

o the Inquiry Committee

TERMS OF REFERENCE

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Ater a year-long Inquiry, English PEN and Index onCensorship have concluded that English libel lawhas a negative impact on reedom o expression,both in the UK and around the world. Freedomo expression is a undamental human right, andshould only be limited in special circumstances.Yet English libel law imposes unnecessary anddisproportionate restrictions on ree speech,sending a chilling eect through the publishingand journalism sectors in the UK. This eect nowreaches around the world, because o so-calledlibel tourism, where oreign cases are heard inLondon, widely known as a town named sue.The law was designed to serve the rich andpowerul, and does not reect the interests o amodern democratic society.In this report, we cut through the intimidatingcomplexity o English libel law to show howthe legal ramework has become increasinglyunbalanced. We believe that the law needsto acilitate the ree exchange o ideas andinormation, whilst oering redress to anyonewhose reputation is alsely or unairly damaged.Yet our inquiry has shown that the law as it standsis hindering the ree exchange o ideas andinormation. We repeatedly encountered the

same concerns, expressed by lawyers, publishers, journalists, bloggers and NGOs, who have nowish to abolish libel law, but know rom experienceo its chilling eect on legitimate publication. Inresponse to their concerns, which are set outbelow, we oer the ollowing recommendationsto restore the balance between ree speech andreputation:

1. In libel, the deendant is guilty untilproven innocent

We recommend: Require the claimant

to demonstrate damage and alsity

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

We recommend: Cap damages at 10,000

3. The denition o publication deescommon sense

We recommend: Abolish theDuke o Brunswick rule and introducea single publication rule

4 . London has become an internationallibel tribunal

We recommend: No case should be heardin this jurisdiction unless at least 10 per cento copies o the relevant publication havebeen circulated here

5. There are ew viable alternatives toa ull trial

We recommend: Establish a libel tribunal asa low-cost orum or hearings

6. There is no robust public interest deencein libel law

We recommend: Strengthen the publicinterest deence

7. Comment is not ree

We recommend: Expand the defnition oair comment

8. The potential cost o deending a libelaction is prohibitive

We recommend: Cap base costs andmake success ees and Ater the Event(ATE) insurance premiums non-recoverable

9. The law does not refect the arrival othe internet

We recommend: Exempt interactive onlineservices and interactive chat rom liability

10. Not everything deserves a reputation

We recommend: Exempt large andmedium-sized corporate bodies andassociations rom libel law unless theycan prove malicious alsehood

In order to acilitate a thorough democraticdebate about this crucial subject, we recommendthat these measures should be incorporated ina Libel Bill, which would simpliy the existing law,restore the balance between ree speech andthe protection o reputation, and reect theimpact o the internet on the circulation o ideasand inormation.

EXECUTIVE SUMMARY

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BALANCING FREE SPEECH

AND REPUTATION


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Free speech is internationally recognised as one

o the most important o all our human rights. The

Universal Declaration o Human Rights written

in the atermath o the Second World War

describes ree speech as the highest aspiration

o the common people. The European Court oHuman Rights has historically kept this in mind,

describing ree speech as one o the essential

oundations o a democratic society and one

o the basic conditions or its progress and or

each individuals sel-ulflment.1 The Court

has also noted that ree speech protects not

only inormation and ideas that are avourably

received or regarded as inoensive or a matter

o indierence, but also those that oend, shock

or disturb.2 The Human Rights Act (1998) gives

British citizens the right to ree speech as set out in

Article 10 o the European Convention on Human

Rights: the reedom to receive and impartinormation and ideas without intererence by

public authority and regardless o rontiers.

This ormalises a long tradition in British society,

which has respected ree speech because o its

importance or democracy, or scientifc inquiry,

and or sel-ulflment.

Free speech is a cornerstone o democracy.

Without ree speech, we could not hold the

government to account; nor could we represent

our political views or expose the wrongdoing o

those who represent us. This is why MPs claim anabsolute privilege to make or repeat deamatory

remarks in the House o Commons. It enables

them to air their constituents concerns without

the ear o a libel action. The importance o this

principle was reafrmed in October 2009, when

an injunction was used in an attempt to block

the reporting o parliamentary business. In the

wake o this scandal, Westminster, the media and

the public have been reminded o the essential

value o ree speech to democracy.

The recent revelations about MPs expenses

which have contributed to a process o

democratic renewal would not have been

possible without public access to closely-guarded

inormation. Even as campaigners attempted to

use the Freedom o Inormation Act to uncover

MPs expenditure, the Speaker turned to a libel

law frm, Carter-Ruck, to protect his reputation.3

Other MPs threatened to sue or libel in the wake

o the revelations. Beore this inormation became

public, such threats could have silenced critical

reports. Now that the public knows how the

expenses system was operated, MPs would fnd it

hard to mount a successul libel action. Yet public

fgures in other countries continue to use English

libel law to silence their critics, rom Ukraine to

Iceland (see Appendix).

Free speech is not only vital or democracy; it is

also necessary or the pursuit o knowledge. FromSocrates to Galileo, philosophers and scientists

have been penalised or challenging received

wisdom. New ideas can be deeply unsettling.

Backed up by scientifc research, they can orce

us to rethink our place in the universe. Science

depends on rigorous debate, which is best

conducted within a scientifc ramework, not

a court o law, as the ongoing case o British

Chiropractic Association v Singh demonstrates

(see Appendix). Free speech is also important

or sel-ulflment. We all beneft rom being able

to speak our minds, to express our emotions and

to understand the emotions o those around us.Novelists and other creative writers depend on

their right to reedom o expression to illuminate

the human condition. Yet libel law has been used

against at least one novelist in recent years who

inadvertently created a character resembling a

real person, who subsequently sued or libel (see

Appendix).

Free speech is also essential in order or a strong

and independent media to hold the state to

account, to expose corruption, and to host

national debates on matters o public interest.This does not mean that the media should be

ree to deame members o the public or public

fgures with impunity. However, journalists have

an important role to play in society, and so long

as they exercise that role responsibly, the public

interest is served better by a liberal regulatory

regime that allows occasional mistakes, than

by a stricter regime that curtails media reedom.

Societies live and breathe through the oxygen o

ree speech.

Sometimes the atmosphere can become

polluted. We dont always like what we hear, and

some speech can be disturbing. No one would

deny that speech is powerul. We are linguistic

animals, and i speech didnt have the power to

change our lives we wouldnt have bothered to

invent it. It is in recognition o the special power

o speech that Article 10 o the Human Rights

Act sets out a number o interests that may

occasionally justiy constraints on the right to

reedom o expression, such as national security,

public order, and the rights and reputations o

others. This means that any legal restraints on our

speech (and other orms o expression such as

4

1 Handyside v UK(1976) 1 EHRR 737 para 492 Ibid.3 See Daily Mail, 10 August 2007


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writing and art) must be justifed by one o theseconcerns. For instance, the Ofcial Secrets Act

limits the reedom o soldiers and public ofcials to

share their knowledge o sensit ive issues. However,

in order to prevent governments imposing undue

restraints on ree speech, the European Court o

Human Rights has established some key principles

here: any restraints must be (1) necessary in a

democratic society; (2) proportionate to the threat

posed; and (3) subject to legal certainty in other

words, the law must be clear and consistent.

The law o libel developed many centuries beore

the idea o human rights entered the statutebooks, as part o the arsenal o the wealthy.

From its origins in the eleventh century to todays

million-pound court cases, libel law has been

used to protect the rich and powerul rom

criticism and has come to be associated with

money rather than justice. The high costs involved

and the scale o potential damages have chilled

ree speech. A major report published last year

by the Programme in Comparative Media Law

and Policy at the Oxord Centre or Socio-Legal

Studies revealed that the cost o libel actions in

England and Wales is 140 times higher than theEuropean average.4

Libel law exists to protect people against

statements that have a meaning lowering them

in the estimation o right-thinking members o

society generally, or exposing them to hatred

ridicule or contempt or causing them to be

shunned and avoided.5 It is always presumed

that such statements are alse, just as it was once

presumed that a gentleman must be blameless.

In English law, the deendant in a libel case is

asked to prove the truth o their statement, or

that it was a air comment, not intended as astatement o act, or that the allegation, even i

alse, was made in the public interest. Thus the

deendant carries the burden o proo. The English

approach to libel thereore suggests that the

reputation o the claimant is more important than

the ree speech o the deendant. This eature is

one o the reasons why oreign claimants choose

English courts over other jurisdictions that do not

presume alsity. It is also an anomaly in English

law, where deendants are usually presumed

innocent until proven guilty.

Most countries in the world have some orm ocivil libel law, which allows ordinary citizens to

deend their reputation in court. Indeed, the

Universal Declaration o Human Rights (1948)

recognised the right to legal protection against

attacks upon [] honour and reputation.

However, the architects o the European

Convention o Human Rights did not include

a primary right to reputation. They recognised

the potentially chilling eect o creating such a

right. Our reputation is a unction o the interplay

between how we behave and what is considered

acceptable in our society. Liberals have a bad

reputation in a ascist society; ascists have abad reputation in a liberal society. No one can

go through lie expecting to maintain a good

reputation, regardless o their words or actions. In

order to avoid the chill ing eect o creating a right

to reputation, whilst acknowledging the need or

some legal protection against deamation, the

Convention defnes reputation as a potential

constraint on the undamental right to ree

speech. The state is responsible or fnding an

appropriate balance between ree speech and

the protection o reputation.

In the past decade, probably the most signifcant

development in libel law has been the evolution

o the Reynolds deence, which derives rom a

judgment made in 1999 by the House o Lords

on a case brought by the ormer Irish Taoiseach

Albert Reynolds against the Sunday Times. In their

judgment, the Lords ruled that under certain

circumstances, the media could mount a

public interest deence against allegations that

turned out to be alse. However, the deendant

would have to demonstrate that they had

acted responsibly, and the judgment outlined

several possible criteria that judges could use todetermine whether the deendants had done

so. A Reynolds deence has since been used

successully in Jameel v Wall Street Journal and

in the case o Bent Coppers(see Appendix). Lord

Homan said in Jameel that this deence should

apply to anyone who publishes material o public

interest in any medium, not merely to proessional

journalists and editors. However, the prohibitive

costs o libel law and the misplaced burden o

proo have deterred potential deendants rom

testing this deence in court.

FREE SPEECH IS NOT FOR SALE

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5 See Andrew Nicol, Gavin Millar and Andrew Sharland,Media Law and Human Rights, second edition(Oxord: Oxord University Press, 2009), p. 81

4 A Comparative Study in Deamation ProceedingsAcross Europe, Programme in Comparative MediaLaw and Policy, Centre or Socio-Legal Studies,University o Oxord, December 2008


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On 21 July 2008, the United Nations HumanRights Committee issued a damning critique o

English libel law. The UN stated that the practical

application o the law o libel has served to

discourage critical media reporting on matters

o serious public interest, adversely aecting the

ability o scholars and journalists to publish their

work.6 The report also highlighted the impact

o the internet, which creates the danger that a

State partys unduly restrictive libel law will aect

reedom o expression worldwide on matters

o valid public interest. Over the last decade,

increasing numbers o oreign claimants have

brought libel actions in the English courts, otenagainst deendants who are neither British citizens

nor resident in this country. This phenomenon,

known as libel tourism, has led American

states to pass legislation protecting their citizens

against the inancial consequences o such

rulings and the House o Representatives passed

a bill this year to protect all US citizens. This has

come to be known as Rachels Law, ater the

American academic Rachel Ehreneld who was

sued in London by the Saudi businessmen Khalid

bin Maouz over allegations in her book Funding

Evil. Only 23 copies o the book were available inthe UK, but the English courts still heard the case

(see Appendix).

In its 2008 report, the UN indicated that English

libel law may breach Article 19 o the Internat ional

Covenant on Civil and Political Rights, the right

to reedom o expression. It was this report that

prompted Index on Censorship and English PEN

to launch this inquiry. We soon realised that the

problem o libel tourism cannot be addressed

in isolation. Foreign claimants choose English

courts to silence criticism, not only because o a

jurisdictional loophole but because English libellaws are avourable to the claimant. We might

close this loophole, yet the problem or British

writers and journalists would remain. Moreover,

in todays ragmented media environment, it

is not only the traditional media companies

newspapers, broadcasters and book publishers

that have an interest in ree speech. Everyone

with access to the internet now has the capacity

to create a blog, or post material to YouTube or

other social networking sites. The rise o citizen

journalism and the readiness o newspapers

such as the Guardian to host post-moderatedmaterial on their websites alongside editorial

content have blurred the old boundaries

between the media and the public. This means

that, increasingly, private citizens without the

resources o a newspaper or publisher are being

orced to deend themselves in an expensive,

complex and unair environment, in which their

basic rights are not respected. Many bloggers

receive writs to take down content on their

website posted by other people. The moderators

o (and some contributors to) the ootball an

orum Owlstalk were subjected to a sustained

legal assault by the directors o SheieldWednesday FC (see Appendix).

In its early days, the internet was heralded as

a device that would globalise ree speech, by

creating new opportunities to seek, receive

and impart inormation and ideas. Whilst it has

certainly allowed millions o people the reedom

to blog about their lives, and to share their

views with the world, the internet has also given

states and corporations unparalleled powers

o scrutiny over citizens communications. New

technologies o censorship and surveillancehave developed in competition with the

technology o reedom. Meanwhile, libel laws

that were created in an age o manuscript

circulation are now being applied against

twenty-irst century communications. Libel law

urgently needs to be reormed to meet the new

demands o global publishing. It is time now or

the British state to restore common sense to this

area o law, which has an enormous impact on

the undamental right to reedom o expression,

both in the UK and internationally. All arms o

the state legislature, executive and judiciary

must be involved in this process, which is tooimportant to leave to the courts alone. Civil

society also has an important role to play, as

charities and NGOs such as English PEN and

Index on Censorship have shown by conducting

this inquiry. Ultimately, we believe that legislation

will be required to set an appropriate balance

in law between the protection o reputation and

the undamental importance o ree expression.

In the ollowing section we set out the ten

primary ailings in the current legal system, and

oer solutions to these ailings.

BALANCING FREE SPEECH AND REPUTATION

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6 UN Human Rights Committee, 21 July 2008


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In the course o our Inquiry, we encountered theollowing complaints about English libel law:



3. The denition o publication dees

common sense4. London has become an international libel

tribunal5. There are ew viable alternatives to a

ull trial6. There is no robust public interest deence in

libel law7. Comment is not ree8. The potential cost o deending a libel

action is prohibitive9. The law does not refect the arrival o

the internet10. Not everything deserves a reputation

These concerns are held by a wide variety oauthors, publishers, journalists, lawyers and new

media practitioners. In each case, we haveidentifed a means o restoring the balancebetween ree speech and reputation, as ollows:


Because o the antiquated presumption o alsity,libel law requires the deendant to do all the heavywork o proving either the truth o their allegations;or that their publication constitutes air comment;or that they were protected by some orm oprivilege such as the absolute privilege o a

parliamentarian, or the qualifed privilege o somejournalists. There is no requirement or the claimantto establish the alsity o the allegation; nor arethey required to show that it has caused them anytangible harm or that the deendant has madeany allegations recklessly or maliciously.In order to bring a libel action, a claimanttheoretically needs to have a reputation in theUK and to show that a statement is deamatory.However, it is very rare in practice or a court toreject a claim. With no requirement on the claimantto prove that their reputation has actually beendamaged, their threat o a libel action, even i ablu, can be enough to silence journalism that

may be in the public interest. It is this, above all,which gives libel its unique chilling eect on reespeech. In most other jurisdictions in the world, it isthe claimants responsibility to show alsity.To remedy this, we recommend that the claimant

should have to demonstrate damage in order tobring a libel action. It will no longer be enoughsimply to claim that a reputation has beendamaged, but it will be necessary to demonstratethat damage has been caused.

We also recommend that the claimant be requiredto provide evidence o alsity or unairness whenthey bring a libel action. This reorm would reversethe burden o proo, bringing English libel law upto global standards. We recognise that there arecases where it may be impossible or a claimantto provide evidence o the alsity o an allegation

and in these instances the deendant may berequired to bring evidence supporting the truth owhat they have written.

We recommend: Require the claimant todemonstrate damage and alsity


The chie remedy in libel should be an apology,not fnancial reward. The law supposedly exists torestore the claimants reputation, not to enhancetheir bank statement with hety awards or

damages. The courts should take the fnancialincentive out o libel law by capping damagesat 10,000. I a claimant wishes to demand more,then they would need to prove material damagesuch as loss o earnings.


3. The denition o publication deescommon sense

The defnition o publication in libel is no longerappropriate or the age o global communication

and the internet. Each newspaper sold or websitehit currently constitutes a new libel the so-calledmultiple publication rule a principle that rendersonline newspaper archives uniquely vulnerable tolibel actions. The rule dates rom the 1849 Duke oBrunswick case, in which the Dukes manservanttravelled rom Paris to London in order to purchasea copy o a 17-year-old journal in which the Dukebelatedly ound himsel to be deamed andconsequently sued or libel.

We welcome the governments consultation onsingle publication and believe that the introductiono a single publication rule would bring onlinepublication in line with print, ensuring that no libel

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action can be brought a year ater publication.We recommend that the Duke o Brunswickrule beabolished.

We recommend: Abolish theDuke o Brunswickrule and introduce a single publication rule

4. London has become an internationallibel tribunal

The multiple publication rule, coupled with theglobal reach o the internet, has contributed to thephenomenon o orum shopping and libel tourism.A book that would once have been available only

in the United States can now be bought here. Anonline publication or article can be downloadedanywhere. The number o cases that can be, andare, brought to the English courts has multipliedas a result. This exposes the English legal system toabuse by claimants with no reputation to deendin this country.We propose that libel cases should be heard inthis jurisdiction only i it can be shown that at least10 per cent o the total number o copies o thepublication distributed have been circulated here.Cases relating to publication on a oreign internetsite should only be heard i the article in question

has been advertised or promoted in England andWales by or on behal o the deendant. This reormwould address the international embarrassmento the UK being used as an international libeltribunal and would introduce a more equitablesystem or hearing libel cases in an age o globalcommunication.We recommend: No case should be acceptedin this jurisdiction unless at least 10 per cent ocopies o the relevant publication have beencirculated here

5. There are ew viable alternatives to a ull trial

Having launched a libel action, claimants currentlyhave little interest in mediation or arbitration. Theyhave the fnancial incentive o seeking damagesin an open trial or settling out o court. Becauseo the costs o deending a libel action, and theonerous burden o proo in a trial, deendants areunwillingly inclined to settle. The Press ComplaintsCommission may resolve some potential libelcases, but this option is not open to bookpublishers, bloggers and NGOs. The absence oany credible orum in which complaints may beheard turns libel into an all-or-nothing decision ormost deendants.

We propose that mediation is made a requirementor anyone bringing a libel action, leading tobinding arbitration. We also recommend urtherreducing the fnancial costs o litigation by makingit possible or a deendant, where appropriate,to issue a declaration o alsity. This would allowredress to injured parties and require minimuminvolvement o lawyers, along the lines o anemployment tribunal. A dedicated libel tribunalcould reduce the immense costs o a libel trial. Itwould also have the power to determine meaningand to establish air comment as a deence at anearly stage.

We recommend: Establish a libel tribunal as alow-cost orum or hearings

6. There is no robust public interest deencein libel law

Although Reynolds privilege and the subsequentruling in Jameelhave gone some way to providingjournalists with a public interest deence, it has notbeen applied widely enough beyond investigativejournalism.We would like to see a stronger public interestdeence that also extends to journalists and writers

who may not appear to be obvious candidatesor a Reynolds deence. Such a reorm wouldsignifcantly strengthen the right to ree expressionin the UK.The court should also take into account thecapacity o the deendant to ollow all the stepsrequired or a Reynolds deence. Deendantswriting about totalitarian regimes, or instance,may not be able to corroborate their reports saely.Journalists and others should be allowed to publishstatements which they believe to be true and inthe public interest.

We recommend: Strengthen the public interestdeence

7. Comment is not reeThere needs to be a broader and more relaxeddefnition o what constitutes air comment in orderto provide greater protection or ree debate. Atpresent, deendants have to jump through toomany hoops or their publication to qualiy ascomment, while judges tend to be overly analyticalin their approach. The courts should be looking atthe context in which a piece is published in order todetermine whether it is intended or likely to be read


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as a statement o act, or one o comment. Todaysreaders are perectly capable o distinguishingbetween statements o act and comment asthey navigate the media-saturated environment.The courts should recognise that robust debate isessential to the democratic process and should beallowed to ourish.We recommend: Expand the defnition o aircomment

8. The potential cost o deending a libelaction is prohibitive

Because o the high hourly rates o many libellawyers, coupled with the 100 per cent uplitthat some lawyers impose upon the successulcompletion o a case where Conditional FeeAgreements (CFAs) are used, deendants may aceextortionate legal bills or the other party. Coupledwith their own costs which even i successulthey may have no hope o recovering rom theother party this can make a trial impossible tocontemplate.Conditional ee agreements were introduced inorder to secure wider access to justice. The ironyis that so ar as libel is concerned, CFAs have

diminished access to justice or newspapers,publishers, NGOs and writers who cannot aordto deend a libel action against a claimant lawyeracting on a CFA.We welcome the governments consultation oncosts, but believe that the measures do not go arenough. We propose abolishing the recovery osuccess ees rom losing deendants in libel casesand mandatory cost-capping o base costs to limitthe level o ees.Libel insurance costs also deter many publishersrom contesting a claim. Knowing that their premium

will reect any costs incurred by their insurers,publishers may be extremely unwilling to contest alibel action, and are once again inclined to settleout o court. Meanwhile, claimants are currentlyable to take out Ater the Event (ATE) insurance inthe knowledge that i their case is successul, theirpremium will be paid by the losing party.We suggest that ATE premiums should not berecoverable.

We recommend: Cap base costs and makesuccess ees and Ater the Event (ATE) insurancepremiums non-recoverable

9. The law does not relect the arrival othe internetA single publication rule, as proposed above,would at long last recognise the completetransormation that has taken place in themedia landscape since the mid-nineteenthcentury. But there are other urgent areas thatneed to be addressed to allow ree speech tothrive online.

Because o the nature o the internet in whichdeamatory comments may be posted withoutthe knowledge o the website publisher it is

essential that libel law is adapted to meet thenew challenges.

While the author will always be liable or his orher writing on a blog or elsewhere the hostshould not be liable when material on their siteis rom a third party. This is an important distinctionrom traditional publishing and would be anenlightened reorm, recognising that internetpublishers do not always exercise editorialcontrol but should be treated more likedistributors.We also propose exempting online interactive

chat rom liability. Action should only be broughtwith proo o special damage.

We recommend: Exempt interactive onlineservices and interactive chat rom liability10. Not everything deserves a reputationWe propose limiting the ability o corporationsand associations to sue. Australia has alreadysuccessully recognised the damaging impact oallowing large corporations to sue or libel withoutrestriction and has introduced a law that preventscorporations with more than ten employees rom

suing. It would still be possible or an individualworking or the corporation to sue i his or herown reputation had been damaged. It is alreadythe case that public bodies and emanations othe state, such as quangos and nationalisedindustries, are not allowed to sue or libel inthe UK. We propose limiting the opportunitiesor corporations and associations to sue toinstances o malicious alsehood only.

We recommend: Exempt large and medium-sized corporate bodies and associationsrom libel law unless they can prove maliciousalsehood


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11

RECOMMENDATIONS


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12

Having considered the existing law in light o

the need to balance ree speech against the

protection o reputation, we have developed the

ollowing recommendations. These are intended

to restore the balance, so that everyone shares in

the beneft o an open, tolerant society.

1. In libel, the deendant is guilty until

proven innocent

We recommend: Require the claimant to

demonstrate damage and alsity



3. The denition o publication dees

common sense

We recommend: Abolish theDuke o

Brunswick rule and introduce a single

publication rule

4. London has become an internationallibel tribunal

We recommend: No case should be heard

in this jurisdiction unless at least 10 per cent

o copies o the relevant publication have

been circulated here

5. There are ew viable alternatives to a ull trial

We recommend: Establish a libel tribunal as

a low-cost orum or hearings

6. There is no robust public interest deence

in libel law

We recommend: Strengthen the public

interest deence

7. Comment is not ree

We recommend: Expand the defnition o

air comment

8. The potential cost o deending a libel

action is prohibitive

We recommend: Cap base costs and

make success ees and Ater the Event (ATE)

insurance premiums non-recoverable

9. The law does not refect the arrivalo the internet

We recommend: Exempt interactive online

services and interactive chat rom liability

10. Not everything deserves a reputation

We recommend: Exempt large and

medium-sized corporate bodies and

associations rom libel law unless they

can prove malicious alsehood

In order to acilitate a thorough democratic

debate about this crucial subject, we recommend

that these measures should be incorporated in

a Libel Bill, which would simpliy the existing law,

restore the balance between ree speech and

the protection o reputation, and reect the

impact o the internet on the circulation o ideas

and inormation.


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14

The ollowing case studies demonstrate the way

in which English libel law has been used to stie

ree speech and prevent legitimate discussion o

matters that may be in the public interest.

LETTER TO THE EDITOR (1984-97)

Claimant: Vladimir Telniko, journalist, Russia

Respondent: Vladimir Matusevitch, journalist, USA

A spat between two Russians in 1984 sparked

a decade-long libel case, which brought into

clear ocus the dierences between English and

American libel law. Vladimir Telniko, a journalist,

complained in an article in the Daily Telegraph

that the BBCs Russian Service employed too

many Russian-speaking minorities, and not

enough o those who associated themselves

ethnically or religiously with the Russian people.

Another journalist, Vladimir Matusevitch, a US

citizen, who was working at the time or Radio Free

Europe, wrote a letter in response, also published

in the Daily Telegraph. Telniko sued, claiming that

Matusevitch had imputed racialist views to him,

comments which he said were libellous.

Matusevitch reused to apologise or his letter,

claiming he was making comment and not

stating act. Although this argument initiallyprevailed in the High Court in 1989, the case was

eventually decided in Telnikos avour in 1991,

ollowing an appeal to the House o Lords. It

was ound that what had to be considered was

Matusevitchs letter in itsel, rather than in the

context o the original article by Telniko. It was

ound that the letter to the editor conveyed the

act that Telniko was a racialist. Damages o

240,000 were awarded.

Matusevitch then moved to Maryland, in the

United States, where Telniko sought to enorce his

UK judgment. The Maryland Court o Appeals, in

a 6:1 majority judgment, ound that recognition

o the English judgment would be repugnant to

the public policy o Maryland. The court said that

American and Maryland history reects a public

policy in avor [sic] o a much broader and more

protective reedom o the press than ever provided

or under English law, and that the importance

o [the] ree ow o ideas and opinions on matters

o public interest meant that Maryland could not

enorce the English libel judgment.

FREQUENT FLYER (1997-2003)

Claimants: Boris Berezovsky and Nikolai Glouchkov,

businessmen, Russia

Respondents: Forbes Magazine, USA

The House o Lords allowed Russians Berezovsky

and Glouchkov to sue the American Forbes

Magazine over an article concerned with their

business activities in Russia, which contained

accusations o gangsterism and corruption.

Around 780,000 copies o the magazine were

sold in the United States, while only around 6,000

copies were accessed in print or via the internet

in the UK.

It is important to note that English courts do have

certain tools available to them to combat libel

tourism. These include reusing permission to

serve court documents out o the jurisdiction as

an abuse o process, i the claimant has only a

minimal reputation to deend in this jurisdiction.

The second weapon in the armoury is the doctrine

o orum non conveniens. Under this doctrine,a claim may be dismissed i a deendant can

demonstrate that another jurisdiction is more

appropriate to hear the case.

Applying the orum non conveniensprinciple, the

trial judge initially ruled that Russia or the United

States would be a more appropriate jurisdiction

in which to hear the case, not least because

Berezovskys reputation was primarily ounded in

Russia. As a result, proceedings would be stayed.

In a landmark 3:2 majority decision, the House o

Lords overruled on the grounds that Berezovskys

daughter was in Cambridge and because o the

requent business trips he made to this jurisdiction.

A majority o the Lords decreed that, in act, he

did have a reputation to deend in the UK, and

that a Russian judgment would not be sufcient

to clear his reputation in this jurisdiction.

Forbesand Berezovsky settled in 2003 with a reading

o a statement in the High Court, a retraction

o the oending article, and the publication o

a correction.


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RACHELS LAW (2004-08)

Claimant: Sheikh Khalid bin Mahouz,

businessman, Saudi Arabia

Respondent: Rachel Ehreneld, journalist, USA

Dr Rachel Ehreneld is the author o Funding Evil:

How terrorism is inanced and how to stop it.

The book, published in 2003 in New York, argued

that money rom drug traicking and wealthy

Arab businessmen was unding terrorism. The

book made several allegations about the

Saudi billionaire Khalid bin Mahouz, including

that he channelled money to Al Qaeda. The

book was not only published in hard copy, but

the irst chapter was also available online at

ABCNews.com.

Mahouz would have had little prospect o

successully suing Ehreneld in the US courts,

as a result both o First Amendment protection

and o the Supreme Court ruling in New York

Times v Sullivan. The Sullivan case established

the principle that those who sue have todemonstrate that the deamatory statements

complained o are made with actual malice,

that is, with knowledge that a statement is alse,

or with reckless disregard as to its accuracy.

What is more, such malice cannot be presumed,

but must be demonstrated by the plainti with

evidence o convincing clarity. As a result,

Ehrenelds allegations about Mahouz would

plainly not have crossed the high threshold

required by American libel standards.

Notwithstanding the above, under US principles

o personal jurisdiction, a plainti must also

demonstrate that a deendants internet

publication is targeted directly at the state in

which a case is subsequently brought. That a

publication is merely available in the jurisdiction is

in no way suicient in the US to ound jurisdiction.

The exact opposite is true in the UK. English courts

have said that by publishing on the internet, a

libel deendant has targeted every jurisdiction in

which that publication may be downloaded.

Chillingly, the advent o internet publishingmeant that 23 copies o Funding Evilhad been

sold via the web to addresses in Britain, while the

ABCNews.com posting meant that it could be

downloaded in this jurisdiction. Despite Funding

Evil having been distributed overwhelmingly

in the United States, the ew copies sold in

this jurisdiction allowed Mahouz to claim

reputational harm in the UK and ound a cause

o action. As a result, Mahouz sued in London

in 2005, where the Sullivan principle does not

apply, and where, subsequent to 9/11, Mahouz

had sued or threatened to sue dozens o

American writers.

Ehreneld reused to acknowledge the jurisdiction

o the UK courts in this matter and took no steps

to participate in the case. Mr Justice Eady then

made a summary ruling that the allegations

were unsubstantiated. Judgment in deault

was granted in avour o Mahouz and his two

sons. Each was awarded 10,000 in damages,

the maximum permitted under the summary

procedure utilised by Mahouz, and theirlegal ees.

There remained the question o whether the

judgment was enorceable in the US. Previously,

the principle o international comity would

have meant that an award o damages in the

UK courts could be enorced in the US. Although

Mahouz did not seek to enorce the judgment,

Ehreneld counter-sued Mahouz in New York,

concerned that a deamation ruling was hanging

over her. Citing the Telniko v Matusevitch case,

she sought a declaration that to enorce theUK judgment would be repugnant to her First

Amendment rights.

The New York Court o Appeals decided that

it could not rule on the matter, because

Mahouz (a Saudi citizen and resident) had not

conducted business in the state o New York. This

was a signiicant inding, given Mahouzs use

o the English courts despite Enrenelds almost

non-existent connection to that jurisdiction. This


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decision thereore let open the questions owhether the UK judgment could be enorced

in the US, and whether writers had adequate

protection against oreign libel judgments.

Unsurprisingly, the decision provoked an outcry,

and the New York State Assembly acted to

remedy the uncertainty. In February 2008, New

York State passed the Libel Terrorism Protection

Act, nicknamed Rachels Law. This legislation

declares oreign libel judgments unenorceable

unless the oreign law grants the deendant

the same First Amendment protections as are

available in New York State. Subsequent to New

York States actions, anti-libel tourism legislation

has been passed in Illinois, Florida and Caliornia,

while the Free Speech Protection Act 2009 is

pending beore the US Congress. This bill, which

would provide protection rom libel tourism at a

national level, is supported by the majority o

ree speech advocates in the United States, as

well as by news organisations such as the

Washington Postand the Los Angeles Times.

HUMAN RIGHTS WATCH (2005)

Claimant: Unnamed

Respondent: Human Rights Watch,

NGO, USA

In the atermath o the Rwandan genocide,

Human Rights Watch (HRW) produced an

investigative report into the massacres, Leave

None to Tell the Story. The report, written in

1999 by Dr Alison Des Forges, presented

eyewitness testimony alongside Rwandan

government documents, and named numerous

persons who played a role in or acilitated the

genocide.

In 2005, one o the men named in the report

threatened a deamation suit against HRW in

the UK, although only a handul o the reports

were in circulation at that time and an extremely

small number o people had even accessed the

report online rom the UK.

HRW reviewed the evidence behind its report,going to Rwanda to reconirm acts and

locate sources at great expense. At the time

o the research o the report, the complainant,

like many in the ormer government, had led

the country and his whereabouts were

unknown. HRW paid or mediation o the

claim, despite the individual being under

investigation or genocide by the Rwandan

government.

The mediation resulted in HRW clariying certain

details o the report, but not changing its

substance as to the main allegations concerning

the complainant.

SLAVE (2005-08)

Claimants: Abdel Mahmoud Al Koronky, ormer

diplomat, and his wie, Sudan

Respondent: Little, Brown, publishers, UK

Mende Nazer published an account o her

experiences in Khartoum and London, in whichshe described her lie as a modern slave to

a Sudanese businessman, Abdel Mahmoud

Al Koronky, a ormer Sudanese diplomat, and

his wie. The claimants, both resident in Sudan,

but with the beneit o a conditional ee

agreement, brought proceedings or libel

in London, denying that they had kept Nazer

as a slave.

The court ordered the claimant to provide

375,000 security or costs, to be paid into

court beore the case could continue. The

case was stayed pending this payment, but

the claimants appealed against the order,

frst in the Court o Appeal and then to

the House o Lords. This process took over

two years.

Both appeals were unsuccessul, and the case

was dismissed. The Respondents were awarded

costs, but these proved impossible to recover

rom the claimant.


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JOHNNY COME HOME (2006)

Claimant: Frederick Gladstone Were,

musician, UK

Respondent: Jake Arnott, author, London;

Hodder & Stoughton, publishers, UK

Jake Arnotts novel Johnny Come Home was

published by Hodder & Stoughton in 2006. The

book was set in the pop-culture world o 1970s

London. Although an entirely ictional piece o

work, it was set against a backdrop o real events,

and included a made-up character called Tony

Rocco. In the book, Rocco was depicted as a

sexual predator with a particular predilection or

young boys.

Publication came as something o a shock to

the real-lie musician Tony Rocco, who had had

a hit single, Stalemate, in the 1960s, and who

apparently still perormed on the London cabaret

and club scene. The real Tony Rocco, in actual

act called Frederick Gladstone Were, sought

damages rom both Arnott and his publishers.

Arnott and Hodder & Stoughton maintained that

they were unaware that their ictional character

shared a name with a real-lie perormer. The

case did not go to ull trial and was settled out o

court. Arnott and his publisher apologised to Mr

Were and paid signiicant damages and costs.

The original print run o the book was withdrawn

and pulped, and reissued the ollowing year with

the name o the character altered.

JAMEEL (2006)

Claimant: Mohammed Youse Jameel,

businessman, Saudi Arabia

Respondent: Dow Jones/Wall Street

Journal Europe

The Wall Street Journalreported on US and Saudi

government surveillance o the bank accounts

o prominent Saudi citizens who were suspected

o channelling unds to terror groups. On asupplementary, hyper-linked web page, Youse

Jameel was among those named as being

monitored. He subsequently brought proceedings

against the American publisher in London.

During the case, it transpired that only fve people

in the UK had downloaded the list o names,

three o whom were associated with the claimant.

Despite this, jurisdiction was accepted by the

English courts, and a jury ound that the article

was deamatory o Jameel. On fnal appeal to the

House o Lords, it was held that the Court o Appeal

had denied the Wall Street Journal a Reynolds

deence on very narrow grounds. Reynolds was

intended to liberalise and protect publication

when subject matter is deemed to be in the public

interest. Baroness Hale, in her judgment, said that

serious journalism is to be encouraged.

Jameel is a signifcant case, as it demonstrated

and codifed the liberalising eect o Reynolds

when applied correctly. The Bent Coppers case,

discussed below, also illustrates how the Reynoldsprinciple applies not just to newspapers and

magazines, but also to those who write and publish

books, and, as Lord Homann said in Jameel, to

anyone who publishes material o public interest

in any medium.

AN ICELANDIC CHILL (2006-2008)

Claimant: Kaupthing, Investment Bank, Iceland

Respondent: Ekstra Bladet, Denmark

The Danish tabloid Ekstra Bladet was sued in

London by Kaupthing, an investment bank in

Iceland, over articles it had published that criticised

advice the company had given to wealthy clients

about tax shelters.

Kaupthing, through its solicitors Schillings,

successully claimed UK jurisdiction because

some o the critical articles had been posted on

the papers website, and had been translated into


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English. It was also noted that the chairman o thebank, Sigurdur Einarsson, about whom some o the

articles were written, was resident in London.

Ekstra Bladet initially reused to retract the articles,

but was eventually orced to settle the case beore

it went to trial. The paper had to pay substantial

damages to Kaupthing, cover Kaupthings

reasonable legal expenses, and was orced to

carry a ormal apology on its website or a month.

It is understood that Ekstra Bladets editors are

now reconsidering their policy o providing English

translations o their articles online.

ALMS FOR JIHAD (2007)

Claimant: Sheikh Khalid bin Mahouz,

businessman, Saudia Arabia

Respondent: J Millard Burr and Robert O Collins,

authors; Cambridge University Press, UK

Khalid bin Mahouz brought a libel claim in August

2007 against Cambridge University Press overAlms or Jihad, a book written by two Americans, J

Millard Burr and Robert O Collins. As in the case o

Funding Evil(see above), the book examined how

Islamic charities were used to channel money to Al

Qaeda operations, and once again tied Mahouz

to terrorism unding.

Although the authors wished to fght the case,

and disputed all o Mahouzs claims, Cambridge

University Press decided to withdraw and pulp

the book, rather than deend the action. Their

Intellectual Property Director, Kevin Taylor, said in

the Booksellerthat it would not be a responsible

use o our resources, nor in the interests o any o

our scholarly authors, to attempt to deend a legal

action [in this case].

Cambridge University Press acknowledged the

alsity o the relevant statements in the book, posted

an apology on its website, calling the claims made

in the book maniestly alse, wrote to libraries

around the world to request that they remove thebook rom their shelves, and paid out unspecifed

damages and legal costs. Tellingly, neither Burr nor

Collins agreed to put their names to the apology.

OWLSTALK (2007)

Claimant: Shefeld Wednesday FC, UK

Respondents: Owlstalk, Internet Forum;

Owlstalk users, UK

What an embarrassing, pathetic, laughing stock

o a ootball club weve become.

Lawyers or the ootball club and seven o its

directors launched legal action against the

proprietors o an independent Shefeld Wednesday

Football Club supporters website, Owlstalk.co.uk,

over 11 messages about the clubs board and

management, which had been posted on the

sites discussion board. The site is reely accessible,

but those who post on it have to register their details,

and give themselves a pseudonym by which they

are then known.

Interestingly, the sites terms and conditions stated

that those who post comments on the site must

not publish deamatory or alse statements or

comments. The club considered the posts to be

alse and seriously deamatory messages, and

wished to bring a libel claim against whoever had

posted them. In the frst instance, they brought

a legal claim against Neil Hargreaves, the owner

o Owlstalk.co.uk, to orce him to reveal the

names o those who had posted the allegedly

deamatory comment.

Applying the conditions required to be satisfed

beore such an order is granted, the judge in

the case ound that seven o the 11 postings

bordered on the trivial. To order disclosure o the

identities o the authors o these posts would be

disproportionate and unjustifably intrusive. The

remaining our identities were to be revealed,

although the case was eventually dropped.


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In a separate case, supporter Nigel Short receivedwarning letters rom the club over comments he

made on Owlstalk.co.uk in February 2006. The

club rejected Shorts oer o an apology, and

pursued him or damages. Short was able to

recruit George Davies Solicitors to ight his case,

and eventually the club backed down, paying

his legal costs. However, Short suered two years

o legal wrangling, during which time he lived in

ear o bankruptcy.

AL ARABIYA (2007)

Claimant: Sheikh Rashid Ghannouchi, Tunisia

Respondent: Al Arabiya, Satellite News Channel,

Dubai

A satellite television network, Al Arabiya, based

in Dubai and broadcasting in Arabic, was

successully sued in London by Tunisian Sheikh

Rashid Ghannouchi, the leader o the exiled

An Nahda party, over a news broadcast that

linked him to Al Qaeda and suggested that

he was amongst Islamic igures being targetedin Britain in the wake o the July 2005 bombings

in London.

The importance o the case is that the

programme was broadcast in Arabic, but was

available via satellite receivers in this jurisdiction.

Ghannouchi was awarded 165,000 in

November 2007.

BENT COPPERS (2007)

Claimant: The Police Federation, UK; Michael

Charman, ormer police oicer, UK

Respondent: Graeme McLagan, journalist, UK;

Orion publishing group limited, UK

In 2003, Orion published Graeme McLagans

book, Bent Coppers: The Inside Story o Scotland

Yards Battle Against Police Corrupt ion. The book

told the inside story o the Ghost Squad and

claimed to reveal police corruption.

Police oicer Michael Charman claimed thatthe book had libelled him by suggesting there

were cogent grounds or suspecting him o

corruption.

In October 2005, the trial judge, ruling

on meaning, decided that the ordinary

reasonable reader would conclude that the

book meant that there were cogent grounds to

suspect that Charman had abused his position.

The deences o qualiied privilege raised by

the publisher were dismissed. The deendants

appealed. By the time the case was heard in

the Court o Appeal, the decision in Jameel

had been handed down in the House o

Lords. Applying Jameel to Bent Coppers, it was

ound that McLagan had acted with proper

proessional responsibility and that the trial

judge had not suiciently considered the issues

o public interest and responsible journalism

in the context o the work as a whole. Applying

the Reynolds criteria as Jameel said they

should, it was ound that Bent Coppers was

indeed a piece o responsible journalism, andthe appeal was allowed.

It is believed, however, that ighting the case cost

the publishers 2m in legal ees.

LAND GRAB (2007-08)

Claimant: Rinat Akhmetov, businessman, Ukraine

Respondent: Kyiv Post, Ukraine

Rinat Akhmetov is one o the richest men in

Ukraine. He sued the Kyiv Post in London over

allegations contained in an article published

in October 2007, entitled Appalling Kyiv City

Council Land Grab, which concerned land

deals and corruption in Kiev. The article alleged

that Akhmetov had acted unlawully in respect o

various real estate transactions.

The article was written in Ukrainian, and the paper

has only around 100 subscribers in the UK.


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The paper apologised as part o an undisclosedsettlement out o court in February 2008.

DEFAULT JUDGMENT (2007-08)

Claimant: Rinat Akhmetov, businessman, Ukraine

Respondent: Obozrevatel, two o its editors, and

one o its journalists, Ukraine

Obozrevatel is a Ukraine-based internet news

site that publishes in Ukrainian, with only a ew

dozen readers in Britain. This case was brought

by Akhmetov in relation to a series o our articles

about Akhmetovs youth, published in January

and February o 2007. Deault judgment in

Akhmetovs avour was obtained, along with

damages o 50,000 and costs, in June 2008.

There is no doubt that these cases will have had

a chilling eect on Ukrainian journalists.

BAD SCIENCE (2007-08)

Claimant: Matthaias Rath, vitamin pill

manuacturer, South AricaRespondent: Ben Goldacre, journalist, UK; and

theGuardian, UK

Matthaias Rath, a vitamin pill manuacturer, had

taken out ull-page advertisements in South

Arican publications denouncing AIDS drugs as

ineective, while simultaneously promoting his

own supplements. Ben Goldacre, a Guardian

columnist, raised concerns about these

aggressive advertising strategies in a series o

three articles in January and February 2007. Rath

sued or libel.

Although Rath dropped the case a year later, the

Guardian had by this time racked up legal costs

o over 500,000 with no guarantee that these

would be recovered. While the Guardian was

awarded initial costs o over 200,000, there can

be little doubt that the case was brought by Rath

in an attempt to prevent journalists questioning

his business activities.

A SUITABLE CASE FOR TREATMENT (2008-2009)

Claimant: British Chiropractic Association

(BCA), UK

Respondent: Simon Singh, journalist and

author, UK

Simon Singh, the best-selling author o Fermats

Last Theorem and The Code Book, published an

article in the Guardian in April 2008 in which he

discussed chiropractic treatment with reerence

to the British Chiropractic Association. In a

passage describing the BCAs claims about the

treatment o a number o childhood ailments,

Singh wrote that even though there is not a jot

o evidence the BCA happily promotes bogus

treatments.

Despite the article being published in the

Guardian, Singh was sued personally. Mr Justice

Eady decided on the issue o meaning in May

2009, and ound that Singhs comments were

statements o act, rather than expressions o

opinion, which implied that the BCA was beingdeliberately dishonest. It was a meaning that

Singh has said he never intended. Eady reused

to grant leave to appeal, although permission

was granted by the Court o Appeal itsel in

October 2009.

As a result o this case, the charity Sense About

Science launched a petition or libel reorm.

Richard Dawkins has said that i Singh loses, it

would have major implications on the reedom o

scientists, researchers and other commentators

to engage in robust criticism o scientiic, and

pseudoscientiic, work.


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Many individuals and organisations have

contributed to this inquiry. However, the

conclusions are entirely those o the inquiry

committee. We would like to thank all thosewho gave up their time, expertise and opinions

to help us orm our own, with particular

gratitude to Sir Georey Bindman, Alastair Brett,

David Allen Green, Anthony Julius,

Harvey Kass, Caroline Kelly, Lord Lester o

Herne Hill QC, Gavin Millar QC, Gillian Phillips,

Georey Robertson QC, Alan Rusbridger,

Mark Stephens and Guy Vassall-Adams.

Design and Artwork:

Brett Biedscheid

http://www.statetostate.co.uk

English PEN and Index on Censorship

Free Word Centre, 60 Farringdon Road,

London EC1R 3GA

English PEN

020 7324 2535

[email protected]

Index on Censorship

020 7324 2522

[email protected]

http://www.libelreorm.org


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free speech is not for sale

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