The journalist, the tourist, the claim and their lawyers: libel reform – Part 1

There is a very successful campaign going on to reform the law of libel.

Jack Straw has already promised that the government will do something – what isn’t quite clear, but in reality the only way that the law can be changed is by an Act of Parliament.  One of the major reasons put forward for the need for reform is the assertion that libel tourists – nasty foreign terrorists, fraudsters, politicians and despicable celebrities – are now using the English courts to sue for libel in order to suppress uncomfortable truths, scientific debate and legitimate criticism or comment.  They are able to do this, it is said, because our libel laws are draconian compared with defamation law elsewhere in the world.  The English law of libel therefore has a chilling effect on freedom of speech and must be changed.

The arguments put forward are summarised in the report “Freedom of Speech Is Not For Sale” by English PEN and the Index on Censorship.  This report is an interesting document.  I may as well say straight away that (having done quite a bit of research for this post – I’m not a media lawyer) I am in favour of some reform of the law of libel.  It must be wrong that the burden of proof is on the defendant to prove that his defamatory statement is true (as opposed to the claimant having to show that it is false).  That should be changed.  I also think that there should be some kind of specific protection for genuine scientific debate (although this will be quite difficult to achieve – see later on in this post).  There also need to be some changes to the way legal costs are dealt with.  This is actually nothing to do with libel – it applies to litigation generally – and in fact a review is already under way (again, see later).

However, having said all that, I do find the report quite surprising in a number of respects – some relating to the importance of backing up your factual assertions with the evidence and some relating to a very odd assumption that seems to permeate the whole document.  I find it irritating to be hit with a blunt instrument, even if it doesn’t actually hurt that much and the motive behind the bashing is one with which I completely agree.  I also think it is really, really important not to oversell and simplify the situation just because that seems to create a more marketable campaign.

In the first part of my posts on this topic, I set out some points that might make you – not change your mind, exactly (because I’m assuming we all want maximum possible freedom of speech) – but, maybe, just begin to wonder whether, actually, it’s a bit more complicated than that.

Does libel tourism even exist?

Eady J doesn’t think so.  He’s the Judge who tries a lot of the defamation cases in the London courts.  He said in the Guardian in December 2009:

“I believe the suggestion is that there is a large queue of people, loosely classified as ‘foreigners’, waiting to clog up our courts with libel actions that are without merit and which have nothing to do with our jurisdiction…  [This] is not a phenomenon we actually come across in our daily lives.”

This got a sharp response from John Kampner, chief executive of Index on Censorship (who produced the report linked to above).  He said,

“Eady’s remarks appear to fly in the face of all the evidence.”

Well, only one of them is right.  Either there are lots of foreigners trying to take advantage of our libel laws in our courts, or there are not.  I thought I might try to find out.

The Ministry of Justice and the Department for Constitutional Affairs publish all kinds of interesting statistics as to the cases which come before the English courts.  In 2004, there were 267 defamation claims issued (pg 39).  In 2005, there were 252 (pg 38).  In 2006, there were 213 (pg 44).  The 2007 report is randomly missing.  In 2008, there were 259 (pg 47).  The figures for 2009 are not yet available.  So the total number of defamation actions does not appear to have gone up – which it would, right, if lots of new foreign defendants were issuing writs all over the place?  Almost all cases settle before they get to trial.  In 2008 there were only 8 trials.  By the end of 2009 there had only been 13 (
para 6.2 of pg 328 – this report gets a bit more discussion below – it’s really important).  (I can’t find the data for the number of trials in previous years.)  But a small increase in full trials is probably neutral and on any view doesn’t support the hypothesis that the defendants are all being crushed by the power of the evil claimants, now does it?

I tried and failed to find any statistics at all dealing with the identities of the various parties to the defamation actions.

Why doesn’t she just look in the report, I hear you ask.  Well, I have.  And sure enough the report asserts, in terms (pg 6), that:

“Over the last decade, increasing numbers of foreign claimants have brought libel actions in the English courts, often against defendants who are neither British citizens nor resident in this country.”

There’s no reference to any evidence, or even the source for the assertion.  Wait a second.  I’ll just say that again.  There’s no reference for this assertion.

That is, in my view, pretty rubbish.  It wouldn’t stand up in court.  And it’s better, isn’t it, if people show you on what they are basing their statements, so that you can see for yourself whether it is true.

The Appendix to the report cites 16 examples of defamation actions.  These cases date from 1984 to 2009.  You will appreciate that over that period there were probably between 5,000 and 6,250 defamation actions issued.  Even if all 16 of the cases in the Appendix were between foreign parties, it wouldn’t demonstrate anything.  As it is, only 11 involve a foreign element and some of those are plainly not being cited as examples of libel tourism but of other problems (such as the Matthias Rath claim against Ben Goldacre, which plainly should have been dealt with by the UK courts because the relevant articles appeared in the Guardian which has a UK audience – the problem with that action is the attempt to stifle scientific debate of Mr Rath’s claims about his vitamin pills).  Further, the authors of the report haven’t given any references even for those cases.  Again, this is important so that one can check that the case is being accurately summarised.  It would also have been very very easy – most judgments are available online, for free, at the brilliant site BAILLI.  And one assumes that the authors had a hard copy of the judgment in front of them when they wrote the report.  They could easily have put that online.

So, at best, the jury’s out (sorry).  If anyone can point me in the right direction to some proper hard evidence that demonstrates that foreign libel claims have increased (NB – as opposed to just examples of foreign libel claims:  that won’t prove anything), I’d be very interested to see it.  Especially as Mr Kampner says that the evidence exists.

Even if it does exist, does it matter?

Just calm down and think about it.  Assuming English libel law is right, why are we bothered if foreigners want to come and use the English courts to protect their reputations?  After all, if English law is correct in the balance it strikes between protecting freedom of speech and protecting reputation, surely it is only something to be proud of that people are able to rely on it for protection in this country and not in their own.

In commercial litigation, it is very frequently the case that one or both sides in a dispute are foreign (either individuals or foreign companies).  They are quite often not only foreign but resident in a tax haven.  The reason that they are in the English courts is because we have a reputation for having the fairest, most commercially sensible laws and the most unbiassed and uncorruptible judiciary in the world.  Yes – if you live in the UK, you have two things to be proud of.  The NHS, and the legal system.  So what international businessmen do is make English law the law of their contract, and they agree in the contract that the dispute will be resolved in the English courts.

This is a very, very good thing.  It brings revenue to the UK because all these businesses and individuals pay UK lawyers to conduct their disputes.  It makes London even more of an international trade hub than it already is.

So why are we so bothered if some foreigners want to come and use our courts for their defamation actions?  They will, after all, also have to pay.  The only logical reason to object is because we think that the law itself is wrong, so that these claimants are enabled by our law to obtain judgments that they shouldn’t be able to get – not because they are foreign, but because that judgment shouldn’t have been granted against anyone.

So the real issue must be (of course) whether the law is right or wrong.  Before I go on to consider this (in Part 2 of this post), there is one further point that seems to me pretty important.

Hang on – what if the claimants are right?

In all of the discussion of these issues in the English PEN report in particular but in the media generally both online and old style, it seems to be assumed in every case that the defendants’ defamatory remarks were in fact true.  This is despite the fact that in several cases, there is a judgment which finds that they were not true or the defendant itself has retracted the comment and even apologised.  What if, in some of these cases, the claimant is right to complain about what was said?

Now please do not say that this does not matter because anyone should be allowed to say anything they like because we all have a human right to freedom of speech.  This is plainly not right.  The fact that the human right to freedom of speech is qualified by a number of factors is recognised by the Conventions themselves:  the European Convention of Human Rights provides at Article 10 (in full):

Article 10 – Freedom of expression

1. Everyone has the right to freedom of expression.  This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.  This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. [My emphasis]

So I assume we all agree that the protection of reputation is important.  And, therefore, we agree that the more serious the allegation, the more harm it can do to a person’s reputation and the more important it is that the person can put that harm right.  In short, preventing a person making a scandalous and untrue allegation is not an infringement of their freedom of speech.  It is part of the balance of rights and responsibilities that ought to exist in a civilised democracy.

The most serious allegations might be something like paedophilia.  Or war crimes.  Or, perhaps, terrorism.

Which brings me on to the paradigm case which is always referred to in this context:  Khalid Salim Bin Mahfouz & others v Dr Rachel Ehrenfeld.  You can read Mr Justice Eady’s (yes, him again) judgment in full here.  I really recommend that you do – it is quite short and extremely interesting.

Dr Ehrenfeld wrote a book called Funding Evil in which she said that Khalid Bin Mahfouz and his two sons were involved in various respects with funding terrorism (there is a very good account of the book, the English litigation and the US litigation brought by Dr Ehrenfeld on Wikipedia).  23 copies of the book were sold in the UK via Amazon and the first chapter was available online.  The sons were the owners of a UK company.  The family were well known to the UK banking world.  The family owned 5 homes in the UK.  It seems difficult to contend that these defendants didn’t have a reputation to protect in the UK.  The fact that only 23 copies of the book were sold might go to the amount of damage to that reputation, but not to its existence in this jurisdiction.

The Bin Mahfouz family sued.  Dr Ehrenfeld did not defend the action.  She said she did not have the financial resources and that she would not be able to win due to the lack of protection afforded by English libel law (more on both of these issues in Part 2).  The Bin Mahfouz family could have relied on the English presumption of falsity in order to obtain judgment.  They did not.  At paragraphs 42 to 63 of the judgment, Eady J goes through the evidence which they put forward to refute the evidence put forward by Dr Ehrenfeld (either in her book or in pre-court correspondence between the lawyers).  He finds that there is no merit in any of the evidence put forward by Dr Ehrenfeld.  Obviously, the investigation that he could carry out was limited since Dr Ehrenfeld was not there (and she would presumably say that she would have put forward some more evidence had she taken part), but it is pretty clear from Eady J’s review that there are some serious holes at the very least in the assertions put forward in Dr Ehrenfeld’s book:  see in particular paragraphs 46 and 47 of the judgment.  It is to be noted that later editions of Dr Ehrenfeld’s book do not attempt to deal with the points made by the Judge as to the truth of her claims.  This would have been a cheap (and you might think obvious) way of putting forward her side of the story.

Eady J also records the Mahfouz family’s numerous defamation claims (leading to judgments in their favour and/or withdrawals of the various allegations) in various jurisdictions (not just England).  One way of seeing this is that the Mahfouz family are using libel actions all around the world to suppress the truth about their involvement in terrorism.  The other explanation is that the Mahfouz family are doing the best they can to stamp out an extremely serious and highly damaging rumour, which is simply not true.  I make no comment as to which is right.  I do however object to the case being discussed on the basis of an unthinking assumption that Dr Ehrenfeld must be right, simply because she has the misfortune to be the defendant in a libel action in England.

Part 2 coming soon

I therefore ask you to read Part 2 of this post (coming I hope this weekend, the day job permitting), with perhaps more of an open mind, and less of an assumption that the rights and wrongs of this issue are all one way, than you might previously have had.