English Libel Law

On January 27, 2010, the British Government announced it was establishing a working group to examine concerns that U.K. "libel laws are having a chilling effect on freedom of expression."

For years, Islamists have exploited England's plaintiff-friendly libel laws to stifle their critics. For example, when a Saudi banker threatened suit in 2006, Cambridge University Press agreed to destroy copies of its terror finance book, Alms for Jihad, and even requested U.S. libraries remove their editions from circulation.

Similarly, the Wall Street Journal was sued in England for reporting that at US request, Saudi Arabia was monitoring certain bank accounts to trace whether they were being used to fund terrorist groups. The Journal spent millions of dollars in order to defend itself successfully.

Features of U.K. libel law that encourage predatory suits include:

• Burden of Proof on Defendant – Statement is presumed false and the defendant must prove it is true. (Reversal of standard rule in U.S.)
• Limited Range of Defenses (as compared to other jurisdictions) – For example, while there is a public interest defense, but papers must prove they acted responsibly a level closer to negligence than the stronger U.S. standard in that context of actual malice (i.e. reckless disregard for the truth)
• Asymmetric Cost Burden – Plaintiffs' lawyers take cases on contingency whereas defendants must pay their attorneys win or lose.

A recent Oxford University study found the costs of fighting libel actions in U.K. is more than 140 times the European average.

Further, the problem of England's lax libel regime is not confined to England's shores. Because British courts claim broad jurisdictional reach, Islamists have also been able to intimidate U.S. publishers and authors by threatening to sue in England. In one prominent case, Saudi financier Khalid bin Mafhouz sued US based author Dr. Rachel Ehrenfeld after 23 copies of her book on terror financing were sold online into England. More recently, American Islamic Forum for Democracy founder Dr. Zuhdi Jasser was threatened with suit in England by a Saudi Jasser had criticized on his website.

This forum shopping problem known as "libel tourism" has been the subject of much attention in the U.S.. Several state legislatures (e.g., CA, IL, FL, NY) have passed laws barring enforcement of foreign judgments if those adjudications do not provide "at least as much protection for freedom of speech and the press" as would "be provided by the U.S. and [their] state constitution." A federal version of the legislation passed the Senate on July 19, 2010 and a House vote is expected shortly.

Back in England efforts are afoot internally to address the issue. Following the Working Group's report in March 2010, the Labour government considered reforms including creating a broader public interest defense for responsible journalism as well as a imposing a cap on recoverable legal fees. The effort failed after several MPs objected that limiting fee recovery would make it difficult for poorer plaintiffs to find a lawyer to take their case on contingency. However, on July 9, 2010, Britain's new Justice Minister, Lord McNally, announced plans to have a libel reform measure ready in early 2011.

The Legal Project is involved in the process on both sides of the Atlantic. It the U.S., it has provided research and information to the Senate Judiciary Committee (e.g., regarding the potentially severe consequences of a U.K. default judgment on US victims of "libel tourism.") In 2009, the Project's then director addressed Parliament on the issue and submitted written testimony on the topic to the U.K. House of Commons Culture, Media and Sport Committee. In 2010, the Legal Project responded to a fresh request for information from the Libel Law Working Group. The Legal Project continues to monitor developments and provide regular analysis to governments and the public through reports and articles.

Further Reading

Rachel McAthy – "Government to Lead Libel Reform with New Defamation Bill" – Coverage of the government's latest push to overhaul U.K. libel law.

Lord Steyn – "Defamation and Privacy: Momentum for Substantive and Procedural Change?" – Why efforts to reform the U.K. libel regime can no longer be left to the organic development of the law.

Anthony Lester – "Libel Must be Rebalanced in the Scales of Justice" – A British parliamentarian's take on the need for comprehensive libel reform.

Aaron Eitan Meyer – "Tough Times for Libel Abusers in the UK" – The Legal Project's recommendations for reforming U.K. libel law.

Doreen Carvajal – "Britain, a Destination for Libel Tourism" – A look at why business is booming in England's libel tourism industry.

Reports

"Report of the Libel Working Group" – The U.K. Ministry of Justice's March 2010 report on the current state of British libel law and recommendations for reform.

"Free Speech is Not for Sale" – The Libel Reform Campaign's in-depth look at how English libel law has created a tilted playing field for the authors, journalists, and publishers.

"Memorandum submitted to Parliament on the abuse of libel law by Islamists" – Former Legal Project Director Brooke Goldstein's memorandum to the British parliament on Islamist efforts to exploit U.K. libel law.

"A Comparative Study of Costs in Defamation Proceedings in Europe" – An Oxford University study revealing that the average cost of defending a libel suit in England and Wales is 140 times more expensive than in other European jurisdictions.

Links

English PEN – A registered charity working to promote human rights through literature and defense of free speech.

The Libel Reform Campaign – A grassroots political coalition advocating for the reform of libel laws in England and Wales.

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