The UK’s archaic libel laws are posing a major threat to worldwide freedom of expression, writes Conor O’Keeffe
The unencumbered pursuit of greater knowledge and understanding is the foundation upon which human knowledge must grow. Striving to touch these elusive stars, the great minds of our generation must not be hampered, but instead be free to explore and discover.
Draconian British libel laws and their derivative – ‘libel tourism’, a topic that is attracting increasing attention from lawmakers and commentators in both the UK and the US –threatens to inhibit these great minds and restrict our pursuit of knowledge.
‘Libel tourism’, a phrase coined by leading British lawyer Geoffrey Robertson QC, describes a genre of forum shopping where plaintiffs pursue those who they believe have tarnished their good name and reputation, not in the jurisdiction where the publication was made and the alleged offence caused, but in more friendly, foreign courts. To date, London has been the tourist destination of choice for the wealthy, sparking widespread criticism, reforms and reviews, intimating that the time for the UK’s libel laws to change is imminent.
Two critical factors can be identified as the root of this problem. Firstly, libel law in the UK is heavily weighted in favour of the plaintiff: it attributes significantly more weight to the importance of protecting the good name of a person than it does to freedom of speech. The adoption of this stance alone sets the UK on a collision course with the U.S., a place where the First Amendment and the right of the fourth estate to analyse and criticise reigns supreme.
The potential negative consequences for academic debate and science of this biased law can be seen from the famous Simon Singh case. Singh, a well respected scientist, is being sued by the British Chiropractic Society for criticising its members’ claims that they could treat a variety of illnesses, including child colic, asthma and prolonged crying. Singh, who feels a professional and moral obligation to defend himself and has engendered strong support from writers and journalists, faces the prospect of a bill in excess of £1m should he lose. Singh’s case pinpoints the nub of this debate: in the U.S., a claim like his would never reach a courtroom. In the UK, commentators decline to predict the outcome of the case.
Secondly, unlike both the U.S. and Ireland, British libel law persists with the archaic ‘Multiple Publication’ rule. This rule, which can be traced to case law from 1849, provides that that each and every publication of defamatory material establishes a separate cause of action. In these days of Twitter and instantaneous online media, such a rule exposes a publisher to the prospect of innumerable libel actions from all corners of the globe. It is this very rule that facilitates the pursuit of American writers in the British courts, and that threatens the core American Constitutional right that American courts so cherish.
Anger at libel tourism is widespread. American civil rights activists and newspapers regularly scream about how the UK’s archaic and arrogant laws violate the very core of their democracy and Constitution, the First Amendment. These calls have not fallen on deaf ears: the State of New York, in 2009, introduced the Libel Terrorism Protection Act, which codifies the existing common law rule allowing America courts to refuse to enforce the judgments of foreign courts. The New York Act has provided a role that other states have followed, and federal legislation modelled on the Act is currently before Congress. America means business: it has taken a stance.
Jack Straw, the British Secretary of State for Justice, has also succumbed to deafening domestic and international pressure, and acknowledged the need for reform. In the past two weeks he has announced sweeping reforms of the costs regime for libel actions, severely curtailing the fees that British libel lawyers can charge, and will have received a comprehensive review of the UK’s libel law by May. Let us hope that the voice of free speech deafens the stifling cries of the minority, who seek to use UK law as a tool of suppression.