The libel myth

The campaign to reform English libel law is gathering pace, with the powerful support of the Sunday Times among many others. The laws are said to strangle free speech and encourage libel tourism. But is this true? Bear in mind the press and media are not disinterested parties in this debate.

It is widely claimed that foreigners are coming to England to sue overseas publishers for vast sums, even if their books or newspapers have small circulations here. This view stems in part from a misunderstanding about a particular case (in which I had an advisory role). In 2003 an American academic, Rachel Ehrenfeld, published a book in the US, Funding Evil, on terrorist fundraising. Just 23 copies were sold in Britain, over the internet. Yet a rich Saudi businessman sued in London and won a reported £130,000 in damages and costs.



How could the judge have decided that this individual had suffered substantial injury in England (as required by law), and that London was a more appropriate forum than the US for his action? The answer is simple. If a defendant wants to object to the case proceeding here, on the basis of libel tourism or any other grounds, they must make their objection at the outset, by filling in a form. Ehrenfeld decided not to do so. She said, through her solicitors, that she welcomed the opportunity to demonstrate the truth of what she had written. In the event, she did not defend the action and allowed judgment to go by default. Why she did so is a matter for speculation, but the problem may have been a lack of evidence to justify her damaging allegation that the Saudi businessman was a principal paymaster of al Qaeda.

English law on this matter derives from an international convention, applied throughout Europe, which states that a person can sue for damage or injury in the country in which the defendant is based, or where the wrongful act was done, or where the resulting injury was suffered. That looks like a fair rule, provided that it is buttressed, as it is in England, by another one: that you cannot sue a foreign publication here unless the injury you have suffered here is substantial. Essentially the same applies to books and newspapers circulated from the US, with an extra proviso: that the court will not allow the action to proceed in England if America is the more appropriate forum. With all these protections, one may wonder why US publications are lobbying congress to nullify English libel judgments obtained against US citizens.

I am putting the other side of the case because it is seldom heard. But this doesn’t mean I think that everything is fine. I am a QC specialising in libel cases, but I have no axe to grind. I acted for the Sunday Times in a landmark case which has liberalised English law by introducing a defence for responsible journalism, and I am now representing a Danish doctor who is being sued here by a US multinational pharmaceutical company for remarks made on patient safety at a conference in Oxford.

From my experience, I believe that the law will only work as it should if judges are tough about what constitutes substantial injury suffered in England. This depends on how bad a libel it is, the extent to which the claimant has connections here, and how widely the libel is disseminated.

At present, comment is always allowed, provided only that it is not dishonest. What the law concerns itself with are false factual statements that injure someone’s reputation, and may cause serious damage. It is always a defence to libel if what is published is true. But now reformers are suggesting a reversal of the rule that the defendant has to prove the truth of a factual claim. Is this necessary? It is not unreasonable that, before a newspaper or broadcaster publishes something that may be damaging, it should have evidence to demonstrate at least a probability of truth, which is the legal standard. Even if the story is false, the newspaper will have a complete defence if, first, the story is one of public interest and, second, the publication has been handled responsibly. This does not seem an oppressive rule. Every other profession has to answer to people it damages by failing to exercise reasonable care. Why not the profession of journalism?

Damages are often cited as a problem. But these are effectively already capped, at about £220,000, for the very worst possible case, say that of a social worker or teacher accused by a newspaper, entirely falsely, of being a predatory paedophile, so that he or she is driven into hiding. Is this really disproportionate compensation?

On costs, the media does have something to complain about, especially since the introduction of “no-win, no-fee” cases. With no-win, no-fee, the claimant’s costs can run out of control, because he is not paying them, and the defendant who takes the risk of fighting the case, and loses, may have to pay costs which are doubled by the success fee payable to the claimant’s lawyers. But this is being looked at urgently: in January the justice secretary Jack Straw announced a proposal, to be introduced after a short consultation period, to cut to 10 per cent the no-win, no-fee “premium” that defendants often have to pay. We do, however, have to be careful that this does not prevent people from suing for real injury caused by the press. In short, we have not got everything right just yet. But we are moving in the right direction.