Coming To Terms With European Libel Law

Philip M. Stone July 13, 2010 - Follow on Twitter

Iceland’s Parliament has approved a law that basically protects media from any legal threats and the UK has announced it will reform its draconian libel laws that are long overdue. European courts of late have been more concerned with protecting privacy than they have in protecting the news media, but there now seems to be at least some shift to protecting free speech.

Under the Icelandic legislation – it’s not law yet – if international media were to locate, say, their web servers on the island and/or if the media was to have some sort of presence there (much like banks have with offshore banking) then that media would enjoy what would probably be the world’s most liberal libel regime.

The new law protects, for instance, against libel tourism judgments under which foreign defamation judgments would not be recognized (the UK is considered the libel tourism capital of the world); it projects against excessive costs (another major UK bugaboo); places big limits on prior restraint rulings against publication (yes, another big UK problem); and if an item is more than two months old then forget any libel action.

Libel tourism is a major European problem because EU law requires each member country to enforce the legal judgments of others, so a judgment from a UK court must be enforced throughout the EU. Iceland can sidestep that obligation because it is not an EU member, although it is a candidate. Such libel tourism judgments are so despised the state of New York recently passed legislation that it will not enforce foreign libel judgments, California has passed legislation it won’t enforce British libel judgments and the feds are said to be looking at making non-enforcement of foreign libel judgments a part of federal law.

It’s long been recognized that it is far easier to gain a libel conviction in the UK than it is in the US because of the differences in each country’s libel laws. Thus the UK is perfect for libel tourism in which plaintiffs bring suit there even if the libel was never published there (but it could be accessed there). On privacy issues France is the favored territory – it has very strict laws against invasion of privacy and judgments can be won even though a foreign publication may actually distribute very few print copies in the country. In both cases there are the Web accesses to consider.

Even the British Establishment says that libel tourism has gone too far and the law needs changing. Last October the Lord Chief Justice for England and Wales– suitably named Lord Judge – caused a storm when he proclaimed to the media (English judges seldom proclaim to the media) that he was  not proud that London has the legal nickname as the “libel capital of the world”. Asked why people from all over the world want to sue for libel in the UK even if the libel was not published in the UK but could be accessed via the Web, the judge said, “We need to look closely at why it (London) is called the libel capital of the world and if it is, we have to try to persuade Parliament to change the law."

He said he did not like the fact that wealthy and powerful litigants from around the world came to the London High Court to silence criticism via libel actions. California passed its law against enforcing English libel judgments, for instance,  after an English court ordered all copies globally of a book about a Saudi sheik to be destroyed even though the book, written by an American, was never published in Britain. 

The government got the message and the Labor Government last spring proposed legislation reforming libel law to make libel proceedings more difficult, especially by “libel tourists”, and it also proposed that “public interest” should be an allowed defense in the hope of encouraging more investigative journalism. Jack Straw, the Justice Minister at the time, said, “Our current libel laws need to achieve a fair balance between allowing people to protect their reputations from defamatory allegations, and ensuring that freedom of expression and the public’s right to know on matters of public interest are not necessarily impeded. At the moment, we believe the balance is tilted too much in favor of the former.”

All Labor needed to make the reforms law was to win the May elections. It lost. Since then the new coalition government of Conservatives and Liberal Democrats has been concentrating on cutting billions of pounds of government spending so libel law was not exactly a top government priority, Thus a Liberal Democrat Lord decided he would propose his own legislation only to be astonished when Lord McNally, the new Justice Minister, responded that the government was going to hold consultations with the media, lawyers and the like over the summer and hoped to propose new legislation in the early New Year.

“In reviewing the law we want to focus on ensuring that freedom of speech and academic debate are protected and a fair balance is struck between freedom of expression and the protection of reputation,” the Justice Minister said. “We want to ensure that the right balance is achieved so people who have been defamed are able to take action to protect their reputation but so that freedom of speech is not unjustifiably impeded.”

As far as the media is concerned huge court costs are its biggest impediment to free speech. Under current law successful lawyers in “no win, no fee” cases can earn 200% of normal fees -- the 100% the lawyers would have charged their own clients plus an additional 100% from the losing side and all of that is paid by the loser. The media says those costs have often totaled more than £1 million ($1.5 million; €1.2 million) per case and forces them to make the financial decision to settle out-of-court even though they didn’t think they did wrong, just in order not to get hit with possible enormous legal fees. In addition, the fear of such costs also means that “iffy” stories get tossed just to play it safe.

The Labor government had proposed that the 200% legal fees should be lowered to 110% which made the media happy and left the lawyers scowling saying it will be more difficult for less wealthy people to sue because lawyers will look even harder in deciding to take on such a case.

Lord Triesman is one peer not in favor of relaxing current libel law. He was nailed in May by The Mail on Sunday via journalism at its worst – a former girl friend invited Triesman, the head of the UK Football Association (FA) and leader of its 2018 World Cup bid, to a private lunch, she carried a secret wire, he talked about some extremely damaging international football bribery allegations, she sold that to the newspaper allegedly for £75,000, ($113,000; €90,000) and he had to resign.  He told Parliament he was against giving more power to a media that was “savage”.

The big question is just how bold the government reforms will be. Labor’s proposed legislation before the elections favored the media over the lawyers. Media watchers will be watching closely if that will still be the case under the new government.