Defending the Fifth Estate

Britain’s libel laws have long been a national disgrace. In the Internet age they have now become an international scandal, raising sufficient concerns amongst our American cousins that Senator Joe Lieberman (Ind) and Representative Peter King (Rep) have found it necessary to introduce new legislation into the US Congress to protect the freedom of speech that the US affords it citizens under the First Amendment from the rampant growth in libel tourism engendered by our own laws.

Think about that for a second and what is says about Britain’s libel law. Two American congressmen have become so worried by the pernicious and chilling effect of our libel and defamation laws on freedom of expression that they are steering legislation through congress to preclude the possibility of US citizens being sued in any jurisdiction that lacks the same degree of legal protection for free speech as exists in the US, i.e. the UK. Is that not cause for shame?

Clearly, our politicians don’t think so. Despite the Law Commission having recommended changes to the UK’s libel laws to protect Internet Service Providers as long ago as 2002, the government has done nothing to address its findings. If anything, both our government and the European Union have gone in the opposite direction, citing national security, terrorism, and the omnipresent threat of vicarious liability and cripplingly expensive litigation as leverage against ISPs in order to compel them to police the activities of their users, often at the behest of wealthy vested interests from the recording and film industries.

What we are seeing is the ever-creeping privatisation of internet censorship in a manner calculated to circumvent the heavily qualified legal protection of free expression afforded by article 10 of the European Convention on Human Rights. While the state and its many and varied public institutions and authorities are bound to observe, and operate within, the rights afforded to citizen’s under ECHR, private businesses are under no such obligation whatsoever, leaving citizens with little or no effective means of redress should an ISP cave-in, as they invariably do, to threats emanating from wealthy would-be litigants. By facilitating private censorship via the civil courts, the state abrogates is duty to protect its citizen’s right of free expression after the fashion of Pilate washing his hands of responsibility for the execution of Jesus – not that I believe the latter to be a historical event, of course, but in this case it makes for useful metaphor.

Liebermann & King’s bill is a response to the case of Dr Rachel Ehrenfeld, the director of the American Centre for Democracy, who, in 2004/5, was sued for libel in the English High Court by three Saudi businessmen, Sheikh Khalid bin Mahfouz and his sons Abdulrahman bin Mahfouz and Sultan bin Mahfouz, who she named as alleged terrorist fundraisers in her 2003 book, “Funding Evil: How Terrorism is Financed and How to Stop It“. Although the book was never published in the UK, Mafouz was permitted to sue Ehrenfeld for libel in an English court on the strength of 23 copies of the book being sold to UK residents via the Internet. Ehrenfeld, who has refused throughout to recognise the UK’s claim to jurisdiction, failed to attend a hearing in May 2005 to defend herself, at which a default judgement was entered against her and she was ordered by Justice Eady to pay £10,000 in damages to each of the plaintiffs together with a further £80,000 in costs.

The Ehrenfeld case has already prompted a three-year long counter-suit in the US courts in which Ehrenfeld, with the support of numerous US media organisations, sought to establish that Justice Eady’s ruling was unenforcable in a US court and the book was not libellous under US law. When that case failed, on a question of jurisdiction – the merits of Ehrenfeld’s arguments were not addressed in the judgment -members of the New York State legislature introduced a ‘libel terrorism’ bill, which came into effect in May of this year and which bars New York courts from enforcing a foreign libel judgment unless the country where it was decided grants the same or better protection as US standards for freedom of speech and it expands an individual’s ability to have a court declare a foreign libel judgement invalid in New York. Without this last provision, authors could find their work unsaleable due to their having a foreign (i.e. non-US) libel ruling hanging over their head.

Britain has become the jurisdiction of choice for wealthy would-be litigants in the words of journalist, Geoffrey Wheatcroft, due to the UK’s Libel Laws having…

…always been heavily weighted in favour of the plaintiff. Unlike the defendant in a criminal case or other civil suits – or in a US libel action – he is assumed to be in the wrong, and must prove that “the words complained of” are true. Under “no win, no fee”, the plaintiff is gambling someone else’s money, while the defendant is on a hiding to nothing. “True as to fact or fair as to comment” are the classic defences, but fair comment is subjective, and any attempt to justify or prove truth can be held to aggravate the gravity of the libel. And a defendant is at the mercy of the caprice of juries and the malice of judges.

Wheatcroft omits the final, critical factor; Britain’s common law doctrine of ‘multiple publication’, which is based on a near 160 year old ruling in the case of the Duke of Brunswick v Harmer, one which holds that each individual publication of a libel gives rise to a separate cause of action, as opposed to the single publication rule adopted by the US, in which only the first publication of a libel is actionable.

It is this archaic and perverse ruling that permits a UK court to claim jurisdiction over material published anywhere in the world on the premise that it is ‘published’ in the UK on each and every occasion that it is read by anyone on British soil – quite literally, in the case of a blog, any occasion on which an article, such as this one, is downloaded to a browser on a PC in the UK then, if the content is libellous, the article is actionable in a British court, regardless of where in the world it was first published. Without this precedent, the continued relevance of which has been widely challenged for a number of year, the Ehrenfeld case could never have been brought before a British court.

In the same article, linked above, Wheatcroft proffers with telling observation:

In Britain, we now have the worst of all worlds. Obscure people are hounded by the gutter press, but the libel laws shield “malefactors of great wealth” from criticism and make our courts a playground for the international rich.

All of which is true and yet, despite the Law Commission’s recommendations on the status of ISPs and the trenchant criticism of Britain’s libel laws mounted by the press, lawyers, judges and – now – bloggers, the govenment continues to sit on its hands and do nothing, aided and abetted, it has to be said, by a mainstream press that, although periodically inclined to bare its teeth, is ordinarily too supine in its dealings with the government on what should be a touchstone issue for press freedom in Britain.

Britain’s libel laws need to be reformed, and it should go without saying that this government, or any future one for that matter, could do much to increase its popularity out here in cyberspace if only it were to bring forward the right package of measures, which, as a minimum, must include:

1. Common carrier status for ISPs and webhosts.

It is fundamentally unfair, not to mention impractical in the extreme, to hold Internet Service Providers and webhosts liable for content published on their servers where all they provide is a web hosting package. Removing liability from ISPs will immediately end the practice of would-be litigant targetting them as the weak link in the chain, in the knowledge that they’ll roll-over rather than sustain the costs of defending themselves for the sake of blogger with a £5-10 a month hosting account.

2. Website and forum operators and bloggers to be exempt from liability for user comments provided that they take no active part in the publication of those comments.

In short, if you run and open and unmoderated comments facility or forum then you should not be held liable for comments posted by a third party as you have had no part in their publication. In the case of a moderated forum or comments facility in which user comments are published only after approval by a moderator, then by intervening in the publication process in advance of comments going on public show you become the publisher and have a duty to check that comments you approve are not libellous.

3. Take-down notices for ‘libellous’ content to be issued only by a competent authority (i.e. a court).

Presently, ISPs can avoid liability for third party content only if they comply with a ‘take-down’ notice issued by a complainant. In effect, someone writes to/emails the ISP to complain that a comment or article is libellous and if the ISP goes over the site owners head and unilaterally removes the material then its own back is covered, leaving the site owner then to argue the toss with the ISP if they feel that they’ve been treated unfairly or that the complaint is without merit. With the best will in the world, ISPs are not going to competent to make reasonable judgments on complaints of libel and even if they run the complaint up to a lawyer (at their own cost) there’s every likelyhood that they’ll be advised to comply with the take-down notice just to be absolutely safe.

As a matter of principle, there should no censorship of any online material on the back of a claim of libel without that claim being tested in court.

(It’s worth noting that none of these measures are necessary if you host a site on a US server, where s230 of the Communications Decency Act exempts ISPs and site owners/operators from any liability for third party comments.)

4. Repeal the Brunswick ruling.

On its own, repealing the multiple publication rule would put an end to libel tourism by preventing would-be foreign litigants from using the multiple publication rule to gain access to a British court in order to sue a foreign publication. Only if the author of the allegedly libellous material is a UK resident or the offending material is actually published in the UK would litigation be possible.

5. Extend the scope of permitted statutory defences for libel.

English libel law allows for only three clear lines of defence; justification (i.e. the truth), fair comment (that a a statement was one a reasonable person could have held) and privilege, which covers the reporting of the proceedings of parliament and the courts and includes fair reports of allegations in the public interest – this is where the narrow ‘Reynolds Test‘ comes into play.

There is, in the interests of clarity, a strong argument for giving the Reynolds Test statutory force and making explicit the permissibility of the public interest defence, much as it would not be unreasonable for a revised defamation law to explicitly acknowledge that statements made in good faith and in the reasonable belief that they are true are not actionable, the principle of most relevance to the recent vexatious threat of libel action against Harry’s Place – although David might easily consider that the defence that holds the the plaintiff is incapable of further defamation (i.e. that they have no reputation to defend) might be equally relevant.

Expressions of opinion are, similarly, not actionable in some jurisdictions, although not in the US where the Supreme Court considers that a distinction between opinion and fact is unnecessary in light of the protections offered by the First Amendment, and it also possible to defend a libel action on the basis that a statement or allegation is so absurd or outrageous as to be incapable of being defamatory because no reasonable person would take it seriously, although this point seems to have got lost in the case of Gina Ford vs Mumsnet in which Ford complained about a comment that accused her of “strapping babies to rockets and firing them into south Lebanon”. Ford is yet another serial litigant, going so far as to intimidate The Times into withdrawing a perfectly reasonable commentary on the iniquitous nature of Britain’s libel laws, by Heather Brooke, for no other reason than the fact that Brooke chose to reference Ford’s action against Mumsnet to illustrate her actual point, that the [libel] law is an ass.

6. Remove the presumption of guilt against defendants in libel actions

Almost uniquely in English law, libel actions place the defendant under a de facto presumption of guilt, one which requires them to prove their innocence while the plaintiff need only assert that a statement is libellous without the need to provide evidence to prove that alleged libel in untrue – and yet, even with this iniquitous reversal of natural justice in their favour, this still hasn’t prevented a number of high profile litigants from attempting to perjure their way to a pay-out.

If nothing else has convinced you, this should serve as proof positive that there is something fundamentally unjust and disgraceful at work here.

In conclusion, one can hardly top George Monbiot’s observation, from today’s Guardian:

English libel law is an international menace, a national disgrace, a pre-democratic anachronism. It defends crooks, terrorists and tyrants from investigation. It threatens the free speech of people all over the world and causes untold damage to the reputation of this country. And neither the British government nor the British parliament gives a damn.

But they – the government, and parliament, of course – should give a damn because even in the face of the most pernicious and unjust libel laws to be found in any Western liberal democracy, dissent finds a way of expressing itself.

In defending themselves against the threat of vexatious litigation, bloggers in the UK have turned to non-violent civil disobedience, internet-style, spontaneously evolving a collective defence against such threats that, in some quarters, has come to be called a ‘Spartacus Action’ after the famous scene in Kubrick’s film in which survivors of Spartacus’s defeated gladiator army stand, one by one, to declare that they are Spartacus.

In short, Britain’s political bloggers have decided that, whenever free speech is threatened, it is better to hang together than hang separately and, as the libel ‘specialists’, Schillings, found to their embarrassment when trying to shut down Craig Murray’s blog, last year, if you’re trying to kill a story then the very last thing you should do is start threatening bloggers with litigation. Few things, if any, offer more of a guarantee that bloggers will close ranks and spread a story as widely as possible, to the extent that it is now considered a matter of simple good manners that whenever a blogger is threatened in such a manner, others should do everything possible to spread the ‘offending’ statement to which the threat relates as widely as possible.

  • Superb post which I agree with wholeheartedly.

    I only really discovered the barminess of our libel laws, and particularly the effective presumption of guilt, with the first Craig Murray / Schillings incident. Truly barmy.

  • B4L

    Great post. Have a little idea over at B4L – wonder what you think?

  • GW

    Then there is the “Kamikazi” defence.

    If you are poor, and with no assets this one works.

    In the pasr few years I have been threatened with lible actions by the Yakida Party of Wails – Writs have been issued, notably by ,well I wont name names to protect Unity.

    We had a good defence, as the Labour Party, despite a bit of absolute stupidity by our then agent of issuing a leaflet under my inprint without fact checking.

    It is simple.

    Dear X

    I have your letter – This allegation will be contested.

    I regret that I have no funds to pay any damages or costs awarded, and have no ability to comply with any order given by the courts.

    This is a material fact, which you must declare to any provider of legal costs insurance. If you are unaware of the results of no disclosure could I suggest you consult a competant solicitor.

    I will be looking for my costs in the event of your failing to persue your allegations. I put these at

  • Agreed, it is a terrible embarassment indeed; Americans making us look like backward cousins is never a good look.

    Good to see you offer a solution to the problem.

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