UK Libel Law and Lawfare in the EU
by Alan Mendoza
Ladies and gentlemen, the main focus of my address is on lawfare in the EU, excluding the UK. But before I get into that aspect, a word or two is required on the UK legal system. And in the extraordinary circumstances where the Mother of Parliaments has stood idly by as a succession of litigious individuals of Muslim origin have filed lawsuits in order to prevent discussion of Radical Islam. How have things come to this? Where the freedom of Albion is being undermined to the extent where a foreign body – the state of New York – has felt it necessary to invoke statute to nullify that of a democratic nation?
The simple answer lies in the nature of the British libel law code, which, as mentioned by panellists this morning, makes the UK a uniquely attractive proposition for a libel litigant bringing a claim against a defendant. Now before I delve into the legal minutiae, I must confess something. I am not a lawyer. A second confession. Nor do I wish to be. Fortunately, however some of my best friends are. Unfortunately, some of my best friends have also fallen victim to censorship brought about by lawfare and related actions. The point I am trying to make is that while legal issues are often confused by obfuscating language, in this instance, the problem of lawfare is strikingly simple. And if a layman like I can understand it – and I don't mean this in a disparaging way – then so can the legislators we will need to convince in Britain if there is hope for reforming the system. That is if they can tear themselves away from their expenses claims long enough.
The aim of libel law is of course a noble one. To balance the right of free speech against protection for the reputation of an individual from unjustified attack. So far, so straightforward. And I think we can all agree that In view of the merciless ways in which British newspapers have hunted down their quarry in the past, there is good reason for a balance in the law to have been pursued. For example, you may be aware of a horrific case involving the McCanns, where a young girl was abducted and her parents put through a baptism of fire for the press, which at one stage accused them of being complicit in the case. Clearly, this is unacceptable.
That said, not all cases are like the McCanns. When it comes to issues like Radical Islam, there are specific defences in British law which allow for what might technically be termed libel to proceed. Since the Human Rights Act was passed by Parliament in October 2000, newspapers have been able to point to 'Article 10' which gives a measure of protection for freedom of expression in the public interest. A publisher can therefore utilise the notion of 'fair comment' or can report a statement protected by parliamentary or legal privilege. But, every silver lining has a cloud, and judges have proved only too willing to interpret Article 10 in an extremely narrow way.
And if the organs of the so-called Fourth Estate – the media – have been muzzled, then we are also aware of the more common problems with UK lawfare mentioned earlier. Firstly, the burden of proof in defamation cases is placed squarely on the shoulders of the defendant. Secondly, as shown in the Ehrenfeld case, there is the problem of jurisdiction and libel tourism occurring when a non-UK author, repeating previously made statements to a non-UK market, can be sues in the UK as distribution occurred in the UK. Thirdly, there is also no gradation of scale in libel cases – you cannot have been just a little libelled but either libelled or not.
This leads to the fourth problem of cost. A report by Oxford University found that the costs of defending libel claims in the UK are 140 times higher than in the rest of Europe. British libel lawyers practice conditional no win no fee arrangements which encourage the number of lawsuits being filed. Defendants, whether large or small, end up facing the possibility of daunting legal bills. They do not of course have recourse of no-win, no-fee arrangements.
The net effect of these problems is that authors and publishers often feel they have little choice but to settle out of court. They apologise and take remedial action of their own volition or will not even print statements likely to prove controversial or which may provoke litigious individuals or groups to sue. While they may live to fight another day through this self-censorship, if it becomes dangerous to speak the truth – as it has become in Britain – then it will not be spoken.
And if anyone is doubting that the chief beneficiaries of this situation are those who have been accused of links with Radical Islam, then one only has to consider the case of wealthy Saudi businessman Khalid bin Mahfouz, which was mentioned this morning. Mahfouz, who resides in Saudi Arabia, has sued or threatened to sue more than 30 publishers and authors in British courts.
So if that encapsulates the problem of libel law in Britain what of the great landmass to our east, the countries of the European Union? Have they been spared the trials and tribulations that have affected Britain?
Well, in one sense, yes. Because of Britain's uniquely welcoming libel law system, Europe has been affected by libel tourism to a far lesser extent. But Europe suffers from a different form of lawfare, that being invoked over the notion of religious hatred laws or the concept of blasphemy. In particular, Islamists have been able to utilise the legislation that criminalizes "hate speech" – certain forms of racism and xenophobia – for their own ends and have been able to seek criminal action or libel damages as a consequence.
The most infamous case of European lawfare were of course the Mohammed cartoons controversy in the Fall of 2005. Twelve editorial cartoons, most of which depicted the Islamic prophet Mohammed in unflattering poses, were published in the Danish newspaper Jyllands-Posten on 30 September 2005. The newspaper announced that this publication was an attempt to contribute to the debate regarding criticism of Islam and self-censorship. On 27 October 2005, a number of Muslim organizations filed a complaint with the Danish police claiming that Jyllands-Posten had committed an offence under two sections of the Danish Criminal Code dealing with blasphemy and degradation of groups in society. The high profile move by the Muslim organizations was accompanied by violent and febrile protests by other Muslim groups across the continent and a boycott of Danish products by Muslims and Muslim countries worldwide. The fallout even extended to this year's appointment of a new NATO Secretary-General where Anders Fogh Rasmussen's selection was held up by an increasingly Islamic-oriented Turkey as he had been Prime Minister at the time of the controversy.
What is incredible about this whole situation is that on 6 January 2006, the Regional Public Prosecutor in Viborg discontinued the investigation as he found no basis for concluding that the cartoons constituted a criminal offence, which has public interest exemptions. This was of scant consolation to the journalists and government concerned which had been harried into hiding by the threats of the mob.
If blasphemy was the tool of choice in Denmark, Italy's law against "outrage to a religion" was used against the journalist Oriana Fallaci over her statements and writings on Islam. In 2005, Adel Smith, president of the Union of Italian Muslims, launched a lawsuit against Fallaci charging that "some of the things she said in her book 'The Force of Reason' are offensive to Islam." Smith's lawyer cited a phrase from the book that refers to Islam as "a pool that never purifies." Consequently an Italian judge ordered her to stand trial in June 2006 in Bergamo on charges of "defaming Islam". Due to Fallaci's death in December 2006, the case was not concluded, but a marker had been laid down.
Another well publicised case is that of Dutch legislator Geert Wilders in The Netherlands, which has been referred to. Following his ten minute film Fitna, Wilders found himself a target of "hate speech" litigation. One Imam, for example, asked for fifty five thousand Euros in compensation for his hurt feelings. He was also recently disgracefully banned from Britain under public incitement to violence legislation after threats of Muslim violence from a peer of the realm.
Europe has also caught the British disease of self-censorshio. In September 2006, French writer and philosophy teacher Robert Redeker wrote an opinion piece for Le Figaro. In it, he attacked Islam and Mohammed, writing: "Pitiless war leader, pillager, butcher of Jews and polygamous, this is how Mohammed is revealed by the Qur'an." He called the Qur'an "a book of incredible violence", adding: "Jesus is a master of love, Muhammad a master of hate." That day's issue of Le Figaro was banned in Egypt and Tunisia, and the paper quickly removed the article from its public database. Afterwards, Redeker received various death threats originating from one Islamist website where he was sentenced to death and his address and a photograph of his home posted.
Threats with violence have also affected the cultural sphere. In 2006, the Deutsche Oper, one of Berlin's three opera houses, announced the cancellation of a provocative production of a Mozart opera in the hope of avoiding potential Islamist terrorist attacks. The production would have included a scene depicting the severed head of Muhammad alongside those of other religious figures.
So where are we now in terms of the European legal framework surrounding blasphemy and religious hatred? Well, despite calls by some European Muslim figures for blasphemy laws to be institutionalised across the EU to protect Islam from defamatory attacks, these have so far been rejected.
However, others have been less determined. For example, as if the Enlightenment had never occurred, Ireland seems to be on a headlong rush back into the Dark Ages. Just last month, the Irish Minister for Justice Dermot Ahern proposed to insert a new section on blasphemous matter into the draft Defamation Bill being considered by the Dail. "Blasphemous matter" was defined as a matter "that is grossly abusive or insulting in relation to matters held sacred by any religion. If this law passes, where will the boundary be drawn between legitimate criticism and blasphemy, free speech and outrage?
Moving onto religious hatred, after lengthy negotiations, on November 28 2008 the Council of the European Union's Framework Decision on Combating Certain Forms and Expressions of Racism and Xenophobia by Means of Criminal Law was finally adopted. The Decision obliges the EU Member States to criminalize, among other conduct, "public incitement to violence or hatred directed against a group of persons or a member of a group defined by reference to race, religion, colour, descent, or national or ethnic origin."
EU member states now have the option of punishing conduct that is carried out in a manner likely to disturb the peace, or conduct that is abusive, threatening, or insulting. This is of course how Geert Wilders was prevented from entering Britain.
An open issue remains of course whether Islamists may successfully use the accusation of "Islamophobia", a form of racism, in order to pre-empt public criticism of their activities. This concern has been given added weight by the release, in April 2008, of the Council of Europe's Resolution 1605. While calling on European Muslim organisations, leaders and opinion-makers to "act with a high sense of responsibility in their public statements and condemn terrorism and extremism unequivocally", the resolution calls all member nations to "condemn and combat Islamophobia." Again, where the boundary between legitimate criticism and Islamophobia is drawn remains deliberately vague and is sure to be tested again by Islamists.
Of course, I recognise, and I am sure that all the panellists you hear today will agree, that there is no such thing as the absolute freedom to speak. And that there are indeed legitimate constraints on speech such as obscenity, defamation or incitement to immediate violence.
But, when hate speech laws are so selectively applied, when they are used to criminalise satire or opinion, or to punish merely what is offensive to some. Or when hate speech laws are used as a guise to enforce punishment of blasphemy. Then they are being used to infringe the rights of the speaker, who is neither afforded any type of due process or equal protection under the law.
Hate speech laws, short of incitement to immediate violence, are by their very nature all-encompassing, arbitrary and capricious, and put the rights of religions ahead of individual liberties. The due process problem is that there is no objective standard by which to measure what is illegal. A person will never know if what they are saying is allowed or not until someone later finds it offensive. A democracy must only enforce laws by which citizens know in advance how to govern their actions, or we will live in a state of fear, oppression and self-censorship.
So if the picture is gloomy in Britain and Europe, we can at least take hope in that there is a simple solution. Just as the problem of lawfare is legal in nature, so must the solution be, to change interpretations of the law. If we are serious about changing the situation, we must therefore look to influence debate on law codes in Britain and Europe to ensure that libel, religious hatred and blasphemy law is interpreted differently.
In Europe, this will require lobbying at the Commission and Council level, to ensure that no further legislation is passed that has the unwitting effect of criminalising free speech in the public interest. National governments will also have to be encouraged to stand firm on the balance between legitimate criticism versus outrageous statements.
In Britain, the reform process has already started. A debate on the subject of libel law reform, including an assault on libel tourism, was initiated by three Members of Parliament, Denis MacShane, Michael Gove and Norman Lamb in December 2008. The House of Commons Select Committee on Media, Culture and Sport is currently conducting an investigation into how the system works with a view to recommending changes. Parliament will also be considering a draft civil law bill during the course of the next session which can be used to investigate the matter further. I am pleased to say that the Legal Project of the Middle East Forum has been actively involved in this process together with organisations like my own Henry Jackson Society and Douglas Murray's Centre for Social Cohesion.
One thing is for certain. If we want change in Britain and the continent, we will have to enact it ourselves. It is no good pulling up the drawbridge and retreating here through legislation – admirable as it is – of the type being proposed by Senators Specter and Lieberman. That may stave off the problem for a while, but if we continue to adopt defensive tactics, it will only be a matter of time before the civil liberties campaign reaches your shores in earnest. The USA under President Obama is already a changed place to what it was under President Bush, lest we not forget. So let us join forces together to defeat this international scourge, and in so doing, perhaps we can give new meaning to that oft mentioned phrase, the Transatlantic Alliance.
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