Simon Singh wins his appeal: hurrah

The judgment of the Court of Appeal is here.   It is excellent and contains a very clear explanation of the current rules and what has happened so far.

Something I hadn’t been aware of was that the BCA chose to sue Dr Singh, but not the Guardian.  This is very unusual for the extremely practical reason that it is usually the publisher rather than the author who has the cash.  The decision to sue Simon Singh alone creates, as the C of A say, the “unhappy impression” that the BCA was trying to “silence one its critics.”  It also makes the litigation even more of a personal attack than litigation usually is.

The Court of Appeal’s judgment is about the specific meaning of Dr Singh’s article.  As they say themselves, they are not commenting on the wider issues which are the principal subject of the libel reform campaign (like the extent of the Reynolds defence).  This is simply reflective of the fact that Simon Singh’s case is not in itself an example of bad libel law.  It is just an example of a wrong decision by the judge.  This has now been put right by the Court of Appeal.

The BCA’s official reaction is here.

Rather amusingly they say they are contemplating an appeal to the Supreme Court (what the House of Lords is now called).  That is hopeless, because you can only appeal to the Supreme Court on a point of law of general public interest.  There is no such point in Dr Singh’s case.  The BCA also say they are “considering their position.”  Now that is a bit more realistic.   I imagine it will settle soon.

Hope they have to agree to pay lots of costs.  Including Dr Singh’s lawyers’ CFA fees.

Excellent speech by Eady J

I know I am starting to sound like Mr Justice Eady’s biggest fan (just to be clear, I don’t know him at all whether professionally or personally).  But this really is a very good speech.  You’ll find it on Index on Censorship’s site here.  IoC are, in my opinion, less than clear about the true position of English libel law in their campaign, but all credit to them for publishing detailed, knowledgeable, accurate commentary such as this – which does make absolutely clear that things are nowhere near as black and white as the libel reform campaign presents them.

Eady J is discussing in this speech the problem of how you reform libel and (in particular) privacy law should you want to do it.  He is explaining why it is more complicated than simply pointing to unmeritorious libel or privacy actions and shouting that this ought not to be allowed.  It is really my point made in previous posts that you cannot legislate for individuals.  You have to legislate by making general statements of principle, which are in principle fair to both sides.  This is because you cannot tell in advance who is going to be in the right.

There is saying among lawyers:  hard cases make bad law.  This is a neat version of saying the same thing.  Take (as my first pupilmaster used to say) a silly example.  It is obviously a terrible thing that some paedophiles reoffend when released from prison.  But this doesn’t mean that we should introduce capital punishment for paedophilia.  A reoffending paedophile is a hard case.  Capital punishment is a bad law.*

Eady J also refers to an interesting report (by two journalists) about the chilling effect or otherwise on journalism of the current privacy laws.  I have copied his link here (you have to register on the site but the report is free).

In summary:  coming soon to a blog near you, I ♥ Eady J t-shirts.

*Unless you are the Sun newspaper, obviously.  I don’t know whether this page is more sickening for its violence or for its spelling.

The journalist, the tourist, the claim and their lawyers: libel reform – Part 3

The Problem of Litigation Costs

As I said at the end of Part 2, legal costs are a major problem in litigation, including but not limited to libel law (and not limited to the UK, either).  The costs problem I talk about in Part 2 is common to all civil (that is, not criminal) litigation in the UK.  Civil litigation includes things that most normal people have heard of or have unfortunately had some involvement in such as you suing for your personal injuries after involvement in a road traffic accident, or after slipping on the floor of a shop, or boundary disputes between neighbours.  It also includes commercial litigation such as disputes about whether an insurance policy covers a particular risk, or banking disputes (not just fraud), disputes arising out of construction projects and property disputes.

In all of these cases, the winning party is always out of pocket to the tune of about 25% of his legal costs.  And when your legal costs can easily amount to £200k or more (sometimes much, much more – in the type of heavy litigation I do, costs on both sides are frequently in the millions), that is a very big hole.

And that is not all.  Any party in any litigation, no matter how brilliant their case is, must also take account of the risk that he will lose and be ordered to pay the other side’s costs as well as bearing his own lawyer’s costs.  For an individual, this usually represents complete disaster.  It is easiest to see this using hypothetical figures.  Say your legal costs are £200k.  The other side’s are probably about the same.  If you win you have got a hole in your pocket to the tune of about £50k.  If you lose, you are going down for about £350k.

For an individual, litigation usually represents gambling with their house.  For a small business, it is gambling with their business.  For a commercial entity, things are not quite so bad because they have litigation budgets and, of course, large companies tend to be sophisticated litigants who are aware of the costs risks and have other good reasons for wishing to pursue (or defend) the action.

For an ordinary person, costs of this magnitude (just the ones for their own lawyers) can easily prevent them from litigating at all, even when they have a good case and the defendant really ought to be made to pay.  This is known in a piece of depressingly Birtspeak jargon as the problem of access to justice.

Enabling Access to Justice

For years the concern was to ensure that individuals and small companies were able to obtain the redress that they were entitled to by law.

In 1998 there was a wholesale review of civil litigation procedure and, in particular, costs.  Lord Woolf (another law lord) effectively invented some new means by which individuals could fund litigation, which came into effect in 2000.  There were two major ways.

First, the CFA (Conditional Fee Agreement).  A lot of you will have seen these on the telly in those ambulance-chasing adverts, described as a no-win, no-fee agreement.  Anyone who has actually had to take one out will know that it’s not quite as simple as that.

CFAs come in two forms.  The first is where the lawyer agrees to be paid at a discounted hourly rate during the course of the litigation (so that the litigation itself is relatively cheap to run while it is going on).  If you lose, you only have to pay the discounted fees.  Then, if you win, the lawyer gets back the discount on his fees plus an uplift known as the success fee to compensate him for being kept out of his money for the duration of the litigation (usually between 1 and 2 years) and to compensate him for the risk that he wouldn’t get anything extra at all if you lost.  The idea is that because the other side will basically be paying your costs if you win, you don’t care about the uplift.

The second form of CFA is where the lawyer agrees effectively only to be paid by you if you win the litigation.  In those cases the success fee uplift is usually higher, again the reasoning being that it is basically to be paid by the defendant.  These have the advantage for the litigant that the litigation is free while he is conducting it.  Effectively the solicitor is lending the litigant the money so he can sue (or defend).

Lawyers are not generally known for their wild generosity (and anyway, it’s a bit of a weird idea that the whole costs risk should move to the lawyers in circumstances where they’re just doing their job and the outcome of the litigation is not within their control).

So a new form of insurance called After The Event (ATE) insurance came into being.  You can insure various different risks.

A lawyer will probably not agree to enter into the second form of CFA unless you agree to take out an insurance policy which covers his fees (not the other side’s fees) in the event that you lose (it is for this reason that no-win no-fee agreements don’t really exist and you should ignore any advert that tells you they do).

You can also insure the risk that you might lose and have to pay the other side’s fees.  The premiums for this type of policy are much higher because (a) litigation is a risky business and (b) as discussed above, the total bill can be very high.

To put some figures on the above:

Success fees are often put at 100% – ie if you win the case, your lawyer is entitled to claim double his fees (in principle off the other side because the loser pays).  So your legal fees of £200k suddenly become £400k.

ATE insurance premiums can be anything from £25k to much, much more (well over £100k).  If you win, you can claim your ATE insurance premium back off the other side as well.

Chilling effect

The aim of all this was to make sure that ordinary people were not shut out from the law just because of legal costs.

However, the effect of it has been that defendants who lose their cases are massively penalised in costs (even more than they would be already).  Now before you say, well: they deserve it, you need to remember that most cases are not clear cut, that there are two sides to every story and a defendant might have a perfectly respectable case which he is perfectly entitled to run to trial, and still lose.

This is a particular problem in libel cases, because these are usually far from clear cut factually (and the allegation that has been made might be quite hard and/or expensive to prove in a court – such as Dr Ehrenfeld’s terrorism allegations).  This means that any defendant in a libel case (usually a publisher or newspaper plus the actual author of the piece) has to consider what they will be paying if they lose, not only what they will be paying if they win.

Since claimants in libel actions always take out CFAs and ATE insurance, the final costs bill can easily be absolutely enormous.  The inequity of this is compounded by the fact that even rich claimants, who could easily afford to run the litigation without help, take such measures.  In other words, they use the existence of CFAs and ATE insurance as a tactical pressure on the defendant (or sometimes the other way round).

A table showing payments made by defendants in libel cases (whether after judgment or as part of an agreed settlement) can be found here (it is appendix 17 to Jackson LJ’s preliminary report discussed below).  You can see that in many cases no or hardly any damages for the actual libel were paid at all, but the costs were still horrendous.  Even where substantial damages were paid, they were dwarfed by the costs.  The cases at the bottom end of the table where the costs are pretty low will be those that settle at a very early stage.

This has the effect of making publishers and newspapers more cautious about what they will publish.  It also makes defendants more likely to retract whatever was said and/or settle the case in other ways, even if perfectly good defences are available to them.  In other words, it has a chilling effect on freedom of speech.

The Index on Censorship and PEN report is dead right on this point.   Their proposed solution is that base costs are capped and that CFAs and ATE premiums should not be recoverable from the defendant.


I’m afraid it’s not changing the law of libel.  This is a very widespread problem which has a particular very serious effect in libel cases.

You probably won’t be particularly surprised to hear that in legal circles this problem has been discussed and complained of for quite some time.  Back in November 2008, Lord Justice Jackson (a Court of Appeal judge) was asked by the government to carry out a wide-ranging review of civil procedure relating to costs and in particular methods of funding litigation.  Lord Justice Jackson is of course a clever man (you don’t get too many thick judges) who has a particularly detailed and careful approach to his cases.  He was therefore a very good choice to carry out this review, which easily wins the title of Most Tedious Task of the Decade.

He produced a preliminary report in May 2009 and his final report in January 2010.  You can get hold of both of them here.  They are very, very long.  Luckily the bits you are interested in are relatively concise (and the actual report itself is quite readable as Jackson LJ is writing for the lay person).

The Executive Summary is short and tells you the main recommendations.  You’re interested in paragraphs 2.1, 2.2, 2.6, 2.7, 3.2 and 5.10.  The discussion about recovery of CFAs and ATE premiums is at Chapter 10 of the final report (pages 108 to 112 in particular).  The specific discussion of defamation actions is at Chapter 32 (page 319 onwards) of the final report.

In summary, what is proposed is this:

1.  CFA uplifts and ATE premiums will no longer be recoverable from the losing side.  The winner will have to bear these costs out of his own pocket.

2. Damages for defamation should be increased by 10%.

2.  A regime of “qualified one way costs shifting” should be instituted.

I am in complete agreement with all three proposals.

It will be obvious that the first proposal will go a very long way to reducing the chilling effect on freedom of speech of the current costs regime.  The second proposal is there to ensure that a defamed individual who needs CFAs and ATE insurance because he is of modest means does not end up with nothing having won his case (it is worth noting that damages in defamation actions in the UK are pretty low in any event – again, see this table).  The third proposal is there to ensure access to justice for the individual but requires a bit more explanation.

“Qualified one way costs shifting” is a horrible piece of jargon.  What it essentially means is that the Court will be empowered to take into account the financial resources of the claimant when making costs orders at the end of the case.  As Lord Justice Jackson comments at paragraph 3.7 on page 325, the paradigm libel case is one where an individual of modest means sues a large organisation such as a newspaper.  In the usual type of case, therefore, it is the defamed party rather than the defendant which has no resources.  It is easy to forget that cases like the BCA’s action against Simon Singh are atypical.  So, depending on the circumstances, in an appropriate case the Court would be allowed to order that despite the fact that the claimant had lost the case, the claimant would still not have to pay any of the defendant’s costs.

The proposed rule is as follows:

Costs ordered against the claimant in any claim for defamation or breach of privacy shall not exceed the amount (if any) which is a reasonable one for him to pay having regard to all the circumstances including:

(a) the financial resources of all the parties to the proceedings, and

(b) their conduct in connection with the dispute to which the proceedings relate.

You can see that the idea is that the Court is allowed maximum discretion to make the right order in any particular case.  This type of provision generally leads to the fairest results.

The government (whether this one or the Tories once they get in in May) will almost certainly accept Lord Justice Jackson’s recommendations.  They do however require some new statutes which require an Act of Parliament.   A major purpose of the current campaign as I see it is to ensure that this issue remains in the public eye in order to make sure that these reforms are given high priority in the next session.

Effect on BCA v Singh

The problem for Simon Singh is that these reforms will not be implemented in time for his case.  He will have to continue to defend the action out of his own pocket (I understand that the Guardian have refused to fund the litigation, presumably due to the risks).  His behaviour in doing so is admirable, and very brave.

This means that the forthcoming decision of the Court of Appeal is very important.  For a summary of what is going to happen next week, see Jack of Kent’s post here.

The journalist, the tourist, the claim and their lawyers: libel reform – Part 2

The campaign

Go off and sign your name to the petition if you haven’t already.  They do, basically, have a point.

Recent coverage

Simon Singh’s Court of Appeal case is coming up next week (23 February 2010).  There has been some print media coverage of the various issues recently, which is worth a brief consideration.  In particular Nick Cohen had quite a bit to say in the Guardian about a speech by Lord Hoffman (a now retired law lord), which you can find here.  The first thing to note about Lord Hoffman is that he is a completely brilliant man.  He has a brain the size of a planet and, speaking as someone who spends quite a lot of time trying hard to Understand The Law, is very very good at explaining complicated concepts in a way that even I can understand.  The second point is that he is notoriously fiercely independent (as many extremely intelligent people are), unafraid of defying the government and – please note this – a liberal.  In particular, he has consistently refused to lend any legitimacy to any form of torture.  He was part of the House of Lords committee who said that General Pinochet had to be extradited to Spain to face trial there.  And that decision was set aside (by different judges) because he had failed to declare that he was a chairman and director of Amnesty International’s charity arm.  He is very very far from being an establishment stooge.

I urge you all to go and read Lord Hoffman’s speech.  He makes a number of the points I have made in Part 1 of this post (and let me tell you, it is quite something to be saying that Lord Hoffman agrees with me, rather than the other way round).  He points out various facts about Dr Ehrenfeld’s political sympathies and the holes in her claims (as recorded by Mr Justice Eady in his judgment:  see Part 1).  His point is that when you are considering reforming the law, you have to test your reform by assuming in turn both that the claimant is right, and that the claimant is wrong.  The principles of the law have to reach a just result, using a just procedure, without assuming one side is right and for all kinds of different factual situations.  It’s no good having a law which ensures that the defendant to a libel action always gets off, in circumstances where that defendant has, for example, wrongly and publicly called the claimant a paedophile.

Nick Cohen deals with this not by engaging Lord Hoffman on the point he is making, but by doing four things.  First, he pretends that Lord Hoffman cannot have an independent view.  This is just silly.  Second, he refers to some irrelevant background information about Mahfouz (irrelevant because the libel action was about allegations that he funds terrorism, not that he misstated the financial position of BCCI:  that is, Mr Cohen is setting up a straw man).  Third, he appears to suggest that Lord Hoffman is anti-Semitic or at the very least anti-Israel (see the seventh paragraph).  Lord Hoffman happens to be Jewish.  Fourth, he cites various examples said to be of “libel tourism” which, for the reasons set out in Part 1, don’t prove anything at all.  He goes on to say that the rallying point for English liberals is the libel action by the BCA against Simon Singh – but that, of course, has nothing at all to do with libel tourism!

The latest edition of Private Eye (which I love and to which, for the avoidance of doubt, I have been a subscriber since the age of 16) has a reference to Lord Hoffman’s speech.  I’ll put a link up to a copy of it as soon as I work out how (sorry:  v poor nerd knowledge).  Private Eye comment in their usual gleeful tone that Mr Justice Eady was the only practising libel judge not present at Lord Hoffman’s speech.  They suggest that this might be because Lord Hoffman overturned one of Eady J’s decisions in a previous case, saying in trenchant terms that the decision was unsustainable and wrong.  Well, perhaps.  Or it might have been because he felt a bit shy at listening to what Lord Hoffman actually did say during the speech:

Comments such as these were accompanied by a good deal of disgraceful personal abuse of Mr Justice Eady.

Or maybe he just had something else on that night.

I really would greatly prefer it if the print media would stick to attacking things that actually need to be attacked.  There are some serious issues relating to libel law (not just English libel law) which do need reform.  Most aspects of libel law itself are, however, perfectly fine.

Burden of proof

Jack of Kent has explained with his usual clarity what the law is and why here.

I don’t think this is in any way a straightforward issue, but on balance I think the law should be changed so that the claimant has to establish that the statement is false.

Public interest defence

One of the really weird things about the campaign being run by Index on Censorship and English PEN is that they seem to think that there is no public interest defence in English law.  Essentially, the idea is that is would be a defence to a libel action to say something that turned out to be wrong, if you had taken care to check your point so far as possible and if it was generally important that such topics were freely discussed.

The thing is, there is.

And it’s been around for a while.  A defence of honest comment on matters of public interest has been a part of English law since at least 1863.  You shouldn’t be surprised by this – the English courts have been protecting freedom of speech since long, long before any of the modern human rights treaties.  As Lord Goff (another utterly brilliant lawyer) said in the Spycatcher litigation (pg 30 of the House of Lords’ judgment here):

I wish to observe that I can see no inconsistency between English law on this subject and article 10 of the European Convention on Human Rights. This is scarcely surprising, since we may pride ourselves on the fact that freedom of speech has existed in this country perhaps as long as, if not longer than, it has existed in any other country in the world. The only difference is that, whereas article 10 of the Convention, in accordance with its avowed purpose, proceeds to state a fundamental right and then to qualify it, we in this country (where everybody is free to do anything, subject only to the provisions of the law) proceed rather upon an assumption of freedom of speech, and turn to our law to discover the established exceptions to it.

The public interest defence extended in certain circumstances to factual assertions: where discussion was desirable “for the common convenience and welfare of society” or “right in the interests of society.”  I am quoting from decisions dating from the 1800s ((1834) 1 CM&R 181 and (1870) LR 5 QB 608 if you’re really keen).  The key case for our purposes, however, is Reynolds v Times Newspapers (in 1999) which established what is known as the Reynolds defence.  The importance of Reynolds was that it confirmed that factually inaccurate statements (as well as comments) could be defended on grounds of public interest.

You can read about Reynolds on Wikipedia (so there’s not really any excuse for misleading campaigning about it).  You can read the actual House of Lords’ judgment here.  The House of Lords set out 10 factors which would be relevant to determining whether the public interest was made out in any particular case (they’re in the Wiki article if you can’t be arsed trawling through the judgment).  Lord Nicholls concluded by saying:

In general, a  newspaper’s unwillingness to disclose the identity of its sources should not weigh against it. Further, it should always be remembered that journalists act without the benefit of the clear light of hindsight. Matters which are obvious in retrospect may have been far from clear in the heat of the moment. Above all, the court should have particular regard to the importance of freedom of expression. The press discharges vital functions as a bloodhound as well as a watchdog. The court should be slow to conclude that a publication was not in the public interest and, therefore, the public had no right to know, especially when the information is in the field of political discussion. Any lingering doubts should be resolved in favour of publication.

The decision in Reynolds was applied again and approved in a subsequent House of Lords case called Jameel v Wall Street Journal (in 2006).  You can read the judgment here.  Lord Hoffman (yes, the very same) said that Lord Nicholls’ “ten tests” were to be used as guidance, not as hurdles.  That is, Jameel made is easier for a defendant to establish that his comments, including factual statements, were in the public interest.

This defence would have been available to Dr Ehrenfeld if she had chosen to defend the Mahfouz libel action.  It is also available to Simon Singh.  I assume he will run it in the event (which hopefully will not occur) that his appeal does not succeed.

The Real Problem

The real problem with libel cases in the English courts is not the law of libel.  It is the cost of defending such an action and the fact that even if you win and in principle obtain an order from the court that they have to pay your costs of the action, you will never get 100% of those costs.  Successful parties to litigation usually recover about 75% of their legal costs from the losing side.  This means that you are never, I repeat never, a complete winner in any case.  There is always a hole in your pocket at the end of the day.  (I tell all my clients this.  You would be amazed, just amazed, at how many want to carry on anyway.  Litigation is a fool’s game to be avoided if at all possible.)

This is the problem Ben Goldacre is talking about here.  Matthias Rath sued the Guardian over statements made in Ben Goldacre’s Bad Science column, then dropped his case as it was total utter shite (a legal term), so the Guardian was the out and out winner.  But it was still left with a £170k hole.

This really does have a massively chilling effect on freedom of speech.  It is no good having the Reynolds defence available to you if even when you win you have still had to sell your house to pay the lawyers.

So why are libel actions so expensive?  Is it just because evil lawyers are milking these claims for everything they can get?  Or what?

The answer is… a bit complicated.  And the solution is not as clear cut as you might expect.  To be discussed in Part 3…

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.

In defence of Mr Justice Eady

Most people have heard about the libel action against Simon Singh being brought by the British Chiropractic Association.  In brief, Simon Singh wrote an article in the Guardian discussing chiropracty, in which he said,

“You might think that modern chiropractors restrict themselves to treating back problems, but in fact some still possess some quite wacky ideas. The fundamentalists argue that they can cure anything. And even the more moderate chiropractors have ideas above their station.  The British Chiropractic Association claims that their members can help treat children with colic, sleeping and feeding problems, frequent ear infections, asthma and prolonged crying, even though there is not a jot of evidence. This organisation is the respectable face of the chiropractic profession and yet it happily promotes bogus treatments.

I can confidently label these treatments as bogus because I have co-authored a book about alternative medicine with the world’s first professor of complementary medicine, Edzard Ernst. He learned chiropractic techniques himself and used them as a doctor. This is when he began to see the need for some critical evaluation. Among other projects, he examined the evidence from 70 trials exploring the benefits of chiropractic therapy in conditions unrelated to the back. He found no evidence to suggest that chiropractors could treat any such conditions.”

The BCA sued for libel (the sentences they say are libellous are in bold).

There are defences to such a claim.  One is justification:  if you made a statement of fact, you can prove that what you said is true.  A true statement cannot be a libel.  Another is fair comment:  if what you said is comment, or opinion, then you have to prove that it was fair.  Basically that means you have to show you had good grounds for saying it (but not that it was true – obviously, an opinion is only an opinion, it can’t be true or false).  You can see it’s a bit easier to defend a comment than a statement of fact.

So a judge hearing a libel case has to decide whether the relevant words were a statement of fact or a comment.  Before he can do that, he has to decide what those words actually meant (so that he can go to decide whether that meaning was true, or fair comment, whichever applies).

In the BCA v Singh case, there was a preliminary hearing on 7 May 2009 in which the Judge in charge of the case, Mr Justice Eady, decided the use of the word “bogus” meant that Mr Singh was saying that the BCA “knowingly” promotes bogus treatments.  He also went on to find that this was a statement of fact, not comment.  The full text of the judgment is recorded here.  If right, this would mean that at the final trial, Mr Singh would have to prove that it was factually correct that the BCA deliberately (as opposed to carelessly) put forward treatments which they knew did not work.  Obviously, this would be near impossible.

The judgment attracted a firestorm of criticism of the BCA for suing, and the wholesale demolition of the now infamous “plethora” of evidence which the BCA adduced in support of the claimed efficacy of chiropractic for colic, etc:  see for example Ben Goldacre’s summary here, Jack of Kent’s brilliant posts on the subject herehere and here and the editor of British Medical Journal here.  It has also become the cause celebre which is spearheading a campaign for the reform of UK libel laws, in the course of which Mr Justice Eady has come in for some pretty stringent criticism.

Mr Singh has now got permission to appeal from the Court of Appeal (on 14 October 2009).  You can read Lord Justice Laws’ (I know, I know) short but pithy judgment giving permission to appeal here.  The Court of Appeal is apparently going to be constituted of the Lord Chief Justice, the Master of the Rolls and the frighteningly intelligent Lord Justice Sedley.  I think Mr Singh is likely to win, at least on the issue of the meaning of “bogus.”  It seems clear that the true meaning of Mr Singh’s remark was that the treatments themselves were bogus, not the promotion of them.  This is particularly so when the sentence is taken in the context of the following paragraph.

This will be a very good result.  I am in complete agreement with the comments made by the “Bad Science” bloggers as to both the fact that Mr Justice Eady got the point wrong and as to the serious undesirability of defamation actions being used to stifle scientific debate.

The case and the criticisms of the Judge have received a lot of attention is some quite surprising quarters.  The papers have been all over it, and not just the broadsheets.  See for example this article in The Mail and this article in the Times (and Mr Dacre’s article discussed below).  Notice that Mr Justice Eady comes in for some personal criticism.  Now you may wonder why the newspapers, and the tabloids in particular, are bothering to try to explain to their readers about why chiropractors have got it wrong and are generally campaigning to help Simon Singh.  Especially when they are, generally speaking, promoters of woo and general health/anti-vaxxer nonsense.

The answer is that Eady J’s (wrong) decision in the Singh case has come to be conflated with issues of “libel tourism” and, most importantly, with issues of privacy.  This is because Mr Justice Eady is the leading defamation and privacy judge in the UK.  He is frequently allocated to those cases because when he was a practising barrister he specialised in media law at one of the top barristers’ Chambers in the country (so he might be thought to know what he’s talking about).  The newspapers, in particular the tabloids, are interested in rulings on these topics because they want to print stories about footballers shagging strippers, or about MPs being homosexual, or about any leading figure engaging in any (almost always) sexual activity that they can get all prurient about.  They want to print these stories because they sell papers.

Mr Justice Eady’s decisions in various previous cases have stopped some of these types of stories being printed, or have awarded damages against various newspapers for libel or for invasion of privacy.

Before going on, I just need to explain the difference between defamation and invasion of privacy.  You defame someone (libel if you do it in writing, slander if you do it orally) essentially if you say something about them which cannot be justified or is not fair comment, and which causes damage to their reputation.  In the UK, you sue for invasion of privacy under the heading of an old legal principle called breach of confidence, as amplified by the Hunan Rights Act 1998 which makes the European Convention on Human Rights law in this country.  It is now established that your Article 8 Convention right to privacy is protected by the breach of confidence claim:  you are entitled to keep information in respect of which you have “a reasonable expectation of privacy” private, and you can claim damages against anyone who publishes it.  The main defence to such a claim is that the disclosure was in the public interest.

It should be obvious that what the law is trying to do is to maintain a balance between the obviously right principle of a free press and the importance of freedom of speech, and the also obviously right principle that a person (even a celebrity) should not have to suffer every detail of their lives printed in the press for us to gossip about – we might like it, but that doesn’t make it right.  It’s not possible to lay down a bright line rule – every case has to be looked at on its own facts to decide where the balance lies.

One of the best examples of this sort of case is Mosley v News Group Newspapers Limited.  The specific paper in question was the News of the World.  News Group is the defendant because it is the owner of the Screws (and The Times, The Sun and the Sunday Times).  Mr Justice Eady decided this case.  His judgment, which you can read in full here, is totally, totally brilliant.

Max Mosley was the president of the FIA (ie he was in charge of Formula 1 motor racing).  He is also the son of Oswald Mosley. The News of the World published two very nasty stories about him, with photos (obtained by using a concealed video camera.  They put the video on the website).  The headlines were “F1 BOSS HAS SICK NAZI ORGY WITH 5 HOOKERS” and “EX MOSLEY HOOKER TELLS ALL:  MY NAZI ORGY WITH F1 BOSS.”  The News of the Screws alleged that Mr Mosley had participated in group sex, had participated in S&M and, as you can see from the headlines, that the event had included a Nazi theme including Nazi- or concentration camp-based role play.

Mr Mosley did not sue for libel.  He sued for breach of confidence.  The Screws said that there was a public interest defence, because if a public person in charge of a large organisation (also likely to be an employer of Jewish people) such as Mr Mosley had Nazi sympathies, the public were entitled to know.  There wasn’t really any dispute about this.  The argument was about whether the events on the video really did have a Nazi theme.

The newspaper relied on 10 key points which they said demonstrated this.  You will have to read the judgment itself to appreciate the full scale demolition of these arguments and the total, hilarious, inevitable collapse of the Screws’ case.  I’ve only got time for one here.  Point 7 was “He is shaved – just like the Jews.”  But as Mr Justice Eady says at paragraph 53:

“[The Screws’ barrister] also relied upon the fact that [Mr Mosley] was “shaved.”  Concentration camp inmates were also shaved.  Yet, as [Mosley’s barrister] pointed out, they had their heads shaved.  [Mr Mosley], for reasons best known to himself, enjoyed having his bottom shaved – apparently for its own sake rather than because of any supposed Nazi connotation.  He explained to me that while this service was being performed he was (no doubt unwisely) “shaking with laughter.”  I naturally could not check from the DVD, as it was not his face that was on display.”

The News of World simply invented the Nazi allegation in order to spice up their story about Max Mosley engaging in standard kink with other consenting adults, in private.  They were probably advised by their lawyers that in the absence of the Nazi stuff, there were simply no grounds for printing the stories – other than their desire to make money by capitalising on people’s unfortunate fascination with gossip about sex.  The Judge concluded,

“[These matters]… seem to me, however, to be marginal and in no way to support the Defendant’s primary case that the events of 28 March involved Nazi role-play – still less (as was originally the [Screws’] case that [Mr Mosley] had specifically ordered a Nazi or concentration camp scenario.  It is fair to record also that I found no evidence at all of his “mocking the humiliating way Jews were treatd.”  Yet, for many people, that must have been one of the most shocking and memorable of the “exclusive” revelations.  It was not surprising that the Holocaust Centre should have responded that his conduct (as described in the newspaper) was an “insult to millions of victims, survivors and their families.”  No doubt others felt the same.”

The papers, however, hated it.  They presented the judgment as a full scale attack on freedom of speech.  Paul Dacre, the editor of the Daily Mail, had this to say in his keynote speech to the Society of Editors on 9 November 2008 as recorded in the Guardian (read full article here):

“This law is not coming from parliament – no, that would smack of democracy – but from the arrogant and amoral judgments – words I use very deliberately – of one man. Justice David Eady has, again and again, under the privacy clause of the Human Rights Act, found against newspapers and their age-old freedom to expose the moral shortcomings of those in high places.

Recently, the same judge in effect ruled that it is perfectly acceptable for the multimillionaire head of a multibillion sport that is followed by countless young people to pay five women £2,500 to take part in acts of unimaginable sexual depravity with him. He found for Max Mosley because he had not engaged in a “sick Nazi orgy” as the News of the World claimed, though for the life of me that seems an almost surreally pedantic logic as some of the participants were dressed in military-style uniform.

Now most people would consider such activities to be perverted, depraved, the very abrogation of civilised behaviour of which the law is supposed to be the safeguard. Not Eady. To him such behaviour was merely “unconventional”. Nor, in his mind, was there anything wrong in a man of such wealth using his money to exploit women in this way. But what is most worrying about Eady’s decisions is that he is ruling that – when it comes to morality – the law in Britain is now in effect neutral, which is why I accuse him, in his judgments, of being “amoral”. But most worrying is that when it comes to suppressing media freedom, the good Eady is seemingly ubiquitous.”

You will see that Mr Dacre does not hesitate to misrepresent the nature of the findings by the Judge.  He also misrepresents the position of the women in question:  four of them gave evidence on behalf of Mr Mosley at the trial as to their willing participation in and enjoyment of the S&M scene and their friendship with Mr Mosley, including evidence of arranging a similar party as a birthday present for him (see paragraphs 106 and 107 of the judgment).  The fifth woman was the person who sold the story to the Screws.  He’s got the military uniform bit wrong, too.  Mr Dacre further does not mention the Screws’ editor’s attempts to blackmail the four women into selling their side of the story by threatening to publish photographs revealing their identity unless they co-operated:  see paragraphs 79 to 97 of the judgment.

Most importantly, he misrepresents the nature of the case and the nature of the law.  The law of privacy and the law of libel are not about “morality” in the sense that Mr Dacre is using the word.  It is nonsensical to say that the law ought to come from Parliament – the common law relating to libel and privacy already exists and Eady J is obliged to apply it.  Neither he nor any other judge can apply any other rules unless and until Parliament passes a new Act.  It is not Eady J’s fault if this has not been done (even assuming that it needs to be done).  And if the law is morally neutral (as one would hope it would be), neither Eady J nor any other judge can do anything about that, either:  see paragraphs 124 to 134 of the judgment.

This also deals with the “libel tourism” point.  It may or may not be right that foreigners can sometimes sue in this country for a libel that would not be actionable in their own country.  But while the law of this land permits it, Eady J and all other judges are obliged to hear and to determine libel tourism cases.  It’s just not up to them.

Another of Eady J’s recent cases deserves a mention.  This one is called Metropolitan International Schools Ltd v Designtechnica UK Ltd.  You can read the full judgment here.  It is about whether Google is liable as a publisher of defamatory information which can be found on websites to which it provides links (you can only be liable if you are either the author or the publisher of the defamatory remark).  This was a new point.  Eady J decided that Google was not a publisher and therefore could not be liable in defamation.  Quite good for freedom of speech, no?

In short, what I want to say is this.

The reason that the newspapers, and in particular the tabloids, are on Simon Singh’s side is not because they give a toss about evidence based medicine, or the stifling of academic and scientific debate using the threat of litigation, or the fact that Eady J’s decision as to the meaning of the word “bogus” is definitely wrong.  They are happy to jump on any bandwagon involving Eady-bashing, because it suits their agenda to include this particular mistake in their campaign to be allowed to publish any slimy little story they want – under the banner of freedom of speech.

It is necessary to be careful of your bedfellows, even in a righteous cause.