I spoke yesterday at a seminar at the Convention on Modern Liberty on press freedom. It was a grim affair.
Alan Rusbridger, the editor of the Guardian, spelt out how bleak the prospects for newspapers were. The regional press was collapsing – "for the first time since the Enlightenment major cities will not have a newspaper to report on local politics". The national press was on its knees, and, he warned, would soon stop doing investigative journalism because of the costs of libel actions in the English courts. (You should read Rusbridger's account of the crippling expense the law imposes on publishers here.)
I took up this theme and tried to convince the largely liberal audience that they needed to rethink their attitude to liberty.
Since the Eighties, liberals have argued for rights enshrined in law. This fitted with the spirit of the times – the Helsinki declarations of the mid-Seventies led to a huge upsurge of interest in human rights. But it also helped the Left cope with repeated defeat at the hands of Margaret Thatcher in the Eighties. Rights legislation allowed the Left to believe that it could secure victories in the courtroom it could not secure at the ballot box.
Whatever you think of a judge-based strategy, it raised one obvious difficulty for supporters of freedom of speech and freedom of the press: the English judiciary does not believe in either of them.
I pointed out that the judges' contempt for a basic human right not only threatened freedom of inquiry in Britain but was becoming a global menace so severe that the United Nations felt compelled to denounce our legal system.
To understand why, you need to understand how oppressive libel law has become.
Historically, it was for the protection of reputation, especially business reputation where losses could follow from defamatory statements. However, the development of the doctrine of "qualified privilege" has removed most situations where it could help the overwhelming majority of British citizens. They can suffer because of false accusations from employers, credit reference agencies, financial institutions, the police and the intelligence services. They cannot turn to the libel law for recompense, however. In essence, libel is a highly restricted and peculiar law directed at writers and broadcasters.
It is an aberration in three other respects
Burden of proof: Libel has a reverse burden of proof. Once the claimant establishes that there has been a defamatory statement (which is an easy test), the onus is on the defendant to show whether
there is absolute/ qualified privilege, fair comment, or justification. Contrary to the principles of the Common Law and natural justice, the odds are stacked against the defendant.
Damages: Libel is actionable per se (only trespass shares this quality). The claimant does not have to show any loss before bringing a case. If the claimant succeeds, he/she is entitled to "general damages".
Costs: Are so high that many newspapers particularly regional and local newspapers never undertake investigative journalism that may incur a libel writ. If they receive one, they settle and apologise as a matter of policy, even if what they printed was true. I have heard MPs and lawyers say that wealthy national media organisation can still fight cases. They do not understand that the Internet is destroying the profitability of national newspapers and commercial broadcasters alike. The money is flowing out of journalism. Rusbridger was not being fanciful when he imagined that in a few years, national papers will self-censor as cravenly as the local press.
As bad journalists can often treat good people badly, you may think it reasonable to leave this aberrant law as it is. But the most striking feature of libel law is that bad people use it against good journalists.
1. Bad reputation no bar to action.
Defamation actions are meant to protect good reputation from damage. Even if a newspaper were to make a false allegation about, say, a serial killer such as the Yorkshire Ripper, he should not be able to sue because as the old legal saying had it, "he has no reputation to loose".
However, the judiciary has consistently allowed men of dubious character to sue and win.
Sheikh Khalid bin Mahfouz.
The Saudi banker's action against Rachel Ehrenfeld's book Funding Evil, a book which had not even been published in Britain, is prompting the US Congress to declare that English libel verdicts should be unenforceable in the United States. If a suggestion from the Senate is accepted, American citizens whose First Amendment rights to free speech are compromised by the English judiciary will be able to counter-sue for punitive damages in the American courts against their accusers.
Commentators have concentrated on how extraordinary it is that the judiciary has put us in the position where America, an ally whose jurisprudence has its roots in the English Common Law, is about to treat us a pariah state. But a second disturbing feature of the Ehrenfeld case is that it was at least open to doubt whether Mr bin Mahfouz had a reputation which was worth protecting. Without admitting guilt, he paid $225 million to settle charges of fraud from New York regulators arising from the collapse of the notoriously corrupt Bank of Credit and Commerce International in the early 1990s. Nevertheless Mr Justice Eady still decided that the Sheikh was a man of good character. He fined Ehrenfeld $250,000 and ordered her to destroy all copies of a book that had not even been printed here!
Even though he is not a British citizen, the English legal profession has allowed bin Mahfouz to file or threaten to file libel suits on 30 separate occasions, and ban not only Funding Evil, but the Cambridge University Press's Alms for Jihad and Craig Unger's House of Bush, House of Saud.
The Cambridge University Press, one of the most scrupulous and respected publishers in the English-speaking world, but the law still forced it to pulp a well-researched book that addressed our country's concerns about national security.
Mr Justice Eady was following the lead the House of Lords set in 2005. Roman Polanski asked the Law Lords for permission to sue the American magazine Vanity Fair about allegations of a sexual nature, not in New York, where it is based and where the editor's freedom of speech would have been protected, but in London.
The film director could not have gone to New York because he had fled to France in 1978 to escape charges of having unlawful sex with a 13-year-old girl. More to the point, he could not appear at the High Court in London either. If he left the sanctuary of his French home, the British police would have arrested him and deported him to the US.
The indulgent Law Lords nevertheless bent over backwards to help him, and allowed a fugitive from child abuse allegations to deliver evidence to the High Court via a video link from Paris.
2. Libel Tourism and Britain's reputation
Polanski and bin Mahfouz are "libel tourists". That is, they are foreigners the judiciary allows to come to Britain and take advantage of our laws. Many argue that we should not worry about libel tourism but instead concentrate on reforming the law. If we had a more just law, they argue the libel tourist trade would stop.
While I agree with that, we ought to be furious about the damage the legal profession is doing to Britain's reputation.
To take just a few of many examples The Economist reported in January 2009 that
"two Ukrainian-based news organisations have been sued in London by Rinat Akhmetov, one of that country's richest men. One, the Kyiv Post, had barely 100 subscribers in Britain. It hurriedly apologised as part of an undisclosed settlement. Mr Akhmetov then won another judgment, undefended, against Obozrevatel (Observer), a Ukraine-based internet news site that publishes only in Ukrainian, with a negligible number of readers in England."
In more earthy language Private Eye reported in May 2008 that
"the latest fashion in libel is for the alleged perpetrators of human rights abuses to hit their critics with writs and enormous costs. 'It's the next big thing in the law,' the defence solicitor Mark Stephens told the Eye. 'The new way to scrape the bottom of the barrel.' City law firms and, inevitably the hacks of Carter Fuck, have realised that critics of multi-nationals and alleged war criminals are putting more and more information on the Net. Scrutinise it long enough and they can find a fact or assertion that cannot be defended in London's notoriously authoritarian High Court and – bingo! – a case is up and running. Human Rights Watch has been hit, as has Global Witness after it published details of how the son of the president of the poverty-stricken Congo was spending a fortune on luxury hotels and luxury goods. (The President claimed it was 'racist' for Global Witness to reproduce his son's lavish credit card bills on its website.) Even if they see off the threats, as Global Witness did, energy is diverted and time and money spent dealing with lawyers rather than getting on with their campaigns.
"The most blatant example concerns Trafigura the Dutch based trading company. On 6 August 2006, a ship it chartered the Probo Koala, unloaded its cargo in Abidjan, the main economic capital of the Ivory Coast. By early September, six people had died as a result of toxic waste poisoning and thousands had sought medical treatment….Trafigura vigorously denied wrongdoing…[but] the families of the dead and the sick pointed the finger at the Probo Koala and arranged to sue for compensation. It seemed a standard confrontation between a company and its accusers, which medical and scientific experts could settle. But Trafigura's lawyers noticed that Leigh Day & Co, the British solicitors representing some Abidjan residents, had printed their accusations on their website. A writ duly arrived, and the instead of preparing a case against Trafigura, the solicitors had to defend themselves."
It is a cause of national shame that New York journalists trying to find out why their city was attacked, Ukranians investigating corruption or human rights groups exposing African dictators must look over their shoulder and worry about British judges and British solicitors. Britain should be a beacon of liberty to the world, not liberty's enemy.
3. The need for Parliamentary intervention.
During a debate on libel in Westminster Hall in December 2008, Denis MacShane MP, said
"the surreal nature of libel tourism can be found in the case of the Danish paper, Ekstra Bladet, which found itself being sued by the Iceland-based bank, Kaupthing [whose] default has caused distress to British savers. Every Member will have a constituent who has lost money and is very concerned. The collapse and wrongdoing of Kaupthing might be about to return Iceland to a rural economy. One would have thought, therefore, that exposure of the bank's practices would have been in the widest public interest, but no. The British libel firm, Schilling and Lom – it certainly made plenty of shillings out of this case – which seems to specialise in touting for business, along with the infamous Carter-Ruck, acted for Kaupthing in London on the grounds that the articles critical of Kaupthing were available on the web. Again, one might have hoped that a British judge would have simply thrown out the case, but of course libel law is a very lucrative business for those small numbers of solicitors and barristers who practise it."
I am as struck by the failure of the legal profession to engage in self-criticism. No one in the Law Society, Bar Council or judiciary wondered if there was anything wrong with a law which allowed a bank that was about to threaten thousands with ruin to intimidate whistle blowers. Similarly, after the habitual litigant Robert Maxwell committed suicide the legal profession did not ask what was wrong with a law that allowed a fraudster to silence and punish his critics. I could go on through the rogue's gallery of successful libel claimants – Fayed, Galloway, Archer – but the substantive point is that their success does not spur the legal profession or the judiciary to mend their ways or cause it the slightest embarrassment.
Reform must come from Parliament.
There is a little hope. MacShane's libel debate is well worth reading in full (not least because MPs could say what I can't. Serious minded MPs from all parties supported him.
Joanne Cash, a libel barrister and the Conservative candidate for Westminster North, told the convention that her party was convinced of the need to extend the protection of journalists.
Lets hope it happens soon because as things stand the next generation of Maxwells, Galloways and Archers will face no scrutiny from what is left of the press.