The Times (of London) last month asked, "Is libel dead?" For those who fling on the motley and tread the boards at the defamation court, the figures look grim. In 1997, 452 libel writs were issued; in the 12 months to May this year there were 64.
Fortunately, there are some bright spots. The research prepared by the publishers Sweet and Maxwell shows celebrities are still suing like crazy and made up 30 per cent of the reported defamation cases in 2006-07.
There has also been a nice bit of growth in terrorism-related libel actions in London. Nowadays terrorism libel cases make up 13 per cent of the total number of reported claims, compared with 4 per cent in the previous year and 6 per cent in the year before that. Behind the scenes and away from the courts there is an enormous amount of activity as the "reputation management" industry builds a head of steam.
In Australia, and Sydney in particular, there has been a similar growth in Muslim plaintiffs suing the media. The Mamdouh Habib case has just finished in the NSW Supreme Court and judgment is reserved. He is suing over a column in The Daily Telegraph that said "he knowingly made false claims". Whether or not he was tortured while being held by the Americans at Guantanamo Bay is at the heart of his case.
Justice Peter McClellan ordered the release of edited transcripts of Habib's interrogation at Guantanamo and, despite objections, kept the court open for the cross-examination of ASIO and Federal Police agents. Pretty radical stuff. One of the agents didn't think 1670 questions to the prisoner in 4½ hours was excessive. Six questions a minute is "not unusual".
The agent said he wasn't aware that following that interview Habib was subjected to another 13 hours of questioning by ASIO. The prisoner was never charged with anything.
Earlier this year there was a run of unfortunate cases. Nationwide News withdrew all its defences in a defamation case brought by the secretary of the Dee Why mosque, Romzi Ali, who had been accused by The Australian of being a supporter of terrorism. In March Justice James awarded him damages of $125,000.
In November 2005, after a five-week investigation by the reporter Richard Kerbaj, The Australian said that Sheik Zoud was preaching the incitement of terrorism at Lakemba Mosque. In October, a jury heard that his passport and travel documents showed Zoud wasn't in the country at the time.
The Daily Telegraph has also settled a defamation action brought by Anwar Al Barq, who provided chaplaincy services to Muslims in the NSW prison system. The paper said he had access to prisoners "some of whom he had known through an organisation affiliated with known terrorist groups".
In August a jury in a preliminary trial found that Keysar Trad, the spokesman for the Islamic Friendship Association, had been defamed by a broadcast on 2GB shortly after the Cronulla riots, which claimed that he incited people to violence.
In some of these instances it can be seen that the media is quick to accuse, but finds it more difficult to come up with the facts.
In England, Cambridge University Press didn't even test the matter in court when lawyers for Sheik Khalid bin Mahfouz wrote to the publisher threatening libel over Alms For Jihad: Charity And Terrorism In The Islamic World. It just pulped the book, grovelled, and asked libraries around the world to take it off their shelves.
The trouble was caused by a claim that Mahfouz had founded a charity called the Muwafaq Foundation, which the US Treasury alleged was responsible for transferring money to al-Qaeda. Mahfouz was the principal donor to the charity but says he has nothing to do with its running or management. Cambridge University Press accepted that, also recognising that Mahfouz is enormously wealthy (his father started the National Commercial Bank of Saudi Arabia) and could outgun it in the courts. Also, the Saudi is a prodigious litigator, suing French and US authors in London who have made claims that his charity funds terrorism.
The London libel lawyer David Hooper gave a crisp summary of the case against the author Jean-Charles Brisard: "A Saudi businessman has obtained an English libel ruling against a French author on the American edition of a book where UK rights were specifically excluded."
In the United States, attempts by Muslim litigants to silence critics have met with less success. Maybe those defendants had a tighter grip on the facts. In August an Islamic charity, KinderUSA, withdrew a libel suit against a former Treasury official and Yale University Press over a claim that the charity had ties to terrorist organisations.
Similarly, the Islamic Society of Boston dropped an action against the Boston Herald and others over a claim it had given money to terrorist organisations.
But some good can come of these litigious struggles. Last year the House of Lords decided in a case also involving claims about funding terrorism and brought by a Saudi businessman, Mohammed Jameel, against The Wall Street Journal, that if journalism was undertaken in a responsible, balanced and thorough manner it would win the day. The court said that standard should be applied in a practical and flexible manner.
Sooner of later we'll have a High Court that will adopt the same sort of thinking.