A law unto ourselves

The Americans have finally had enough of us. In June the House of Representatives passed a bill protecting US citizens from British libel laws. It contains the embarrassing claim that libel actions in British courts are often designed to get around American laws on free speech, and are "intended not only to suppress the free-speech rights of journalists, academics, commentators, experts and other individuals, but to intimidate publishers."

The law's catalyst was Rachel Ehrenfeld, an American writer sued for libel in London—not the US—by a Saudi businessman in 2005 over allegations that he had links to terrorists. Ehrenfeld had not published her book, Funding Evil, in Britain, but 23 copies were sold online here. She decided not to defend the case, and was ordered to pay £130,000 in damages and costs. Ehrenfeld sought protection in the US, but found none. Thus began the battle for what came to be known as "Rachel's law."

The problem, according to Floyd Abrams, one of America's most doughty civil liberties lawyers, is that US claimants have to prove that allegations about them are substantially false, while in Britain claims are false unless a defendant shows otherwise. British law, he says, is "American law turned inside out." Many other countries now share America's dim view: our libel laws are derided around the world as benefiting only legal firms and those who are both rich and have something to hide. The latter are often "libel tourists," foreigners who sue in Britain, confident that there has never been a better time or place to do so.



The use of "no win, no fee" has only made matters worse. Introduced in 1995, it was meant to make access to justice easier. But instead it has allowed rich litigants to stretch cases out, piling up costs beyond what defendants can afford, and forcing a settlement. In some instances the costs have been 100 times the damages awarded.

Politicians are beginning to grapple with the problem, but the scorecard is mixed. A few backbenchers are making noises. During a debate in December 2008, Labour MP Denis MacShane described as "an international scandal" the way that lawyers were "conspiring to shut down… independent thinking and writing about what some of the richest and most powerful people in the world are up to." The justice ministry has also indicated it is prepared to abolish two 18th-century laws on seditious libel and criminal defamation, both of which have been misused by foreign dictators. The most important work, though, is being done by the parliamentary media select committee, which has spent the past few months looking into press standards, privacy and libel. The MPs seem less worried about the media's health, and more about its "excesses." In some respects they are right: revelations in July that private detectives were paid by the News of the World to hack into the mobile phones of public figures only seem to confirm the view of an out of control media.

Yet the context is misleading. The biggest problem with the fourth estate is not that it finds out too much, but that it finds out too little. Of course, the decline of investigative journalism is not due to libel alone. Economics plays a big part too, as editors struggle to justify costly investigative teams at a time of general retrenchment for newspapers.

But libel does matter. One newspaper editor told me recently that he has been gently warned by his board to "lay off the oligarchs." The same is true for important investigations by NGOs, whose work is often threatened by libel, as are independent publishers. Leonard Hoffman, a recently retired law lord, calls it the "blackmailing effect," where threats of action, even if a bluff, inhibit publication. I experienced this for myself as New Statesman editor, dropping a story on links between Labour donors and arms sales. I knew it to be true, and we stood a good of chance of winning if it came to court. But I also knew that we could not afford to fight such a case.

Index on Censorship, of which I am the chief executive, has joined with the charity English PEN to conduct our own libel inquiry. We have talked to editors, lawyers, journalists, bloggers and NGOs—all sufficiently worried about the this issue to put aside their rivalries and unite for a change in the law. The government will respond to the select committee's report this autumn, and may use the News of the World furore to retreat into familiar antagonism towards the press. That would be a blow not only to journalism but to democracy.