For all the flaws in English libel law, we should be grateful for small mercies. At least now we've moved further to ensuring libel is no longer a criminal offence in this country. The House of Lords has voted on a government amendment to the coroners
and justice bill to repeal the laws of criminal libel, seditious libel and obscene libel. With last year's repeal of blasphemous libel, this completes the removal of the four ancient offences that blighted our record on free speech.
It's true that none of these charges had been used for many years; nonetheless, they sat on the statute books like ugly toads, occasionally uttering a warning croak, echoed by even uglier and rather busier toads around the world. Criminal libel laws
still apply in the majority of the world's states to the detriment of free speech and the free flow of information. And let's be clear: these laws are not used to protect anyone's reputation, they are used to silence dissent.
Yet some questions remain. Now that libel is a purely civil affair, will the government turn its attention to meaningful reforms in this area, to ensure that the balance between free speech and reputation is more appropriately set? Will the government
also review its counter-terrorist legislation to ensure that we are free to express our fundamental (even fundamentalist) beliefs without risking criminal charges? Does the repeal of obscene libel laws mean that we are more or less sexually liberated -
given new restrictions on extreme pornography ? And will the Religious Hatred Act allow us to speak out about religious absurdities without fear of being prosecuted for causing offence?
Libel, for those who aren't law students, lawyers, or Guardian readers with Twitter accounts, is a type of law which says you can't say untrue things about people, and if you do, you have to pretty much crush them under a ton of money to make up for
it. Well, that's what it's supposed to do. However, in the last 15 years or so, powerful people have started using Britain's archaic and creaking libel system to stop anyone saying anything about them, true or not. I was the victim of this law.
For those not working in the slowly dying print industry, libel is the big bad nightmare of most of the publishing companies we have left. The dull money men fear and hate libel in the UK - it is incredibly expensive to defend a libel action, and
absolutely catastrophically expensive if you lose.
Britain's reputation for libel tourism is driving American and foreign publishers to consider abandoning the sale of newspaper and magazines in Britain and may lead to them blocking access to websites, MPs have been warned.
Publishers, human rights groups and campaigners have expressed substantial and increasing concern because comments that would be protected under the freedom of speech in the US constitution are actionable in London courts once published here, no
matter how small the readership.
A memorandum submitted to a Commons select committee, ahead of a meeting with US publishers, states: Leading US newspapers are actively considering abandoning the supply of the 200-odd copies they make available for sale in London – mainly to
Americans who want full details of their local news and sport. They do not make profits out of these minimal and casual sales and they can no longer risk losing millions of dollars in a libel action which they would never face under US law. Does the UK
really want to be seen as the only country in Europe – indeed in the world – where important US papers cannot be obtained in print form?
The submission is on behalf of a number of US media outlets, including the Los Angeles Times, the New York Times and MacMillan (US), as well as Human Rights Watch, Global Witness US and Greenpeace International.
After a year-long Inquiry, English PEN and Index on Censorship have concluded that English libel law has a negative impact on freedom of expression, both in the UK and around the world. Freedom of expression is a fundamental human right, and should only
be limited in special circumstances. Yet English libel law imposes unnecessary and disproportionate restrictions on free speech, sending a chilling effect through the publishing and journalism sectors in the UK. This effect now reaches around the world,
because of so-called libel tourism , where foreign cases are heard in London, widely known as a town named sue . The law was designed to serve the rich and powerful, and does not reflect the interests of a modern democratic society.
In this report, we cut through the intimidating complexity of English libel law to show how the legal framework has become increasingly unbalanced. We believe that the law needs to facilitate the free exchange of ideas and information, whilst offering
redress to anyone whose reputation is falsely or unfairly damaged. Yet our inquiry has shown that the law as it stands is hindering the free exchange of ideas and information. We repeatedly encountered the same concerns, expressed by lawyers, publishers,
journalists, bloggers and NGOs, who have no wish to abolish libel law, but know from experience of its chilling effect on legitimate publication.
In response to their concerns, which are set out below, we offer the following recommendations to restore the balance between free speech and reputation:
1. In libel, the defendant is guilty until proven innocent
We recommend: Require the claimant to demonstrate damage and falsity
2. English libel law is more about making money than saving a reputation
We recommend: Cap damages at £10,000
3. The definition of publication defies common sense
We recommend: Abolish the Duke of Brunswick rule and introduce a single publication rule
4. London has become an international libel tribunal
We recommend: No case should be heard in this jurisdiction unless at least 10 per cent of copies of the relevant publication have been circulated here
5. There are few viable alternatives to a full trial
We recommend: Establish a libel tribunal as a low-cost forum for hearings
6. There is no robust public interest defence in libel law
We recommend: Strengthen the public interest defence
7. Comment is not free
We recommend: Expand the definition of fair comment
8. The potential cost of defending a libel action is prohibitive
We recommend: Cap base costs and make success fees and After the Event (ATE) insurance premiums non-recoverable
9. The law does not reflect the arrival of the internet
We recommend: Exempt interactive online services and interactive chat from liability
10. Not everything deserves a reputation
We recommend: Exempt large and medium-sized corporate bodies and associations from libel law unless they can prove malicious falsehood
The number of defamation cases that reached the high court surged by 11% in 2008 to a four-year high, as foreign claimants took advantage of the UK's tougher laws to seek libel tourism awards from publishers.
A total of 259 high court defamation writs were issued last year, according to a review by the law firm Reynolds Porter Chamberlain, the most since 2004.
These figures show that the UK remains a very attractive jurisdiction for libel claimants, said Jaron Lewis, a media partner at RPC. This is because our laws are very pro-claimant, making it difficult for the media to defend claims, even when
they are unmeritorious.
RPC added that most of the cases that did reach the high court were either settled before a trial began, or withdrawn, often because the costs associated with an action, which can run into hundreds of thousands of pounds, were too high for publishers to
For some publishers the cost of losing a libel trial, or even winning one, might put them at risk of closure, said Lewis. It is not the level of damages so much as the requirement to pay a claimant's legal costs, which will often be a
significant six-figure sum.
However, RPC said that if the figures were seen in the wider context of the explosion of news content across the internet, the number of libel claims actually declined significantly, in relative terms, during the past decade.
Although the figures have gone up by 11%, the volume of material being published, particularly on the web, has increased at a much higher rate, said Lewis. So the proportion of articles resulting in libel claims is lower now than 10 years ago.
Jack Straw is preparing to draw up proposals for wholesale reform of England's libel laws.
The justice secretary says the large legal fees involved in defamation cases in English courts are jeopardising freedom of speech, potentially curbing vital debate by scientists, academics and journalists.
The huge payouts awarded to individuals who successfully claim their reputation has been damaged has made London the libel capital of the world.
Last night, Straw warned that the bonanza for lawyers and claimants was having a chilling effect and pledged radical changes. It is very important that citizens are able to take action for defamation if they are seriously defamed. But no-win,
no-fee arrangements have got out of hand. The system has become unbalanced, he said.
In measures that are expected to win cross-party support, Straw believes individuals and media groups must have a clearer right to express their views, as in other countries.
A free press can't operate or be effective unless it can offer readers comment as well as news. What concerns me is that the current arrangements are being used by big corporations to restrict fair comment, not always by journalists but also by
academics, he said.
He also wants to see new restrictions on no-win, no-fee arrangements and curbs on legal fees involved in fighting cases. In many cases, lawyers who win libel cases make 10 times the money their clients are awarded. He cited one case in which a regional
newspaper was forced to pay damages of £5,000 to a plaintiff but £50,000 to the plaintiff's lawyer.
The proposed changes are still under discussion, but Straw is keen to begin the process, which could involve a new libel bill, as soon as possible.
Justice Secretary Jack Straw is to establish a working group to examine England's controversial libel laws. The group will consist of media lawyers, editors and experts. The government has also said it will respond to English Pen and Index on
Censorship's libel report, along with recommendations by the Culture Media and Sport Select Committee within two months of the publication of the Select Committee report.
The working group is expected to convene in January 2010.
A British doctor who is being sued for libel after criticising an American company's research has pledged to turn the action into a test case for freedom of speech.
Peter Wilmshurst, a consultant cardiologist at the Royal Shrewsbury Hospital, told The Times that he aims to use a public-interest defence to fight the claim from NMT Medical and establish the principle that scientists may engage freely in academic
He said he was prepared to risk losing his home to take the case to trial because victory would set a precedent protecting other scientists from legal bullying . Dr Wilmshurst said: I have got a responsibility to fight this. There is a
fundamental principle of science at stake here. People have to be free to challenge research.
There is growing concern about the use of England's draconian libel laws to stifle expert scrutiny of scientific evidence. Simon Singh, the science writer, has been sued for libel by the British Chiropractic Association over an article in which he
questioned the evidence that spinal manipulation could treat childhood conditions such as asthma and colic.
Many scientific journals admit that they now seek legal advice before publishing some academic papers, and several websites have withdrawn scientific articles claimed as defamatory because of the prohibitive costs of defending such actions.
Dr Wilmshurt's case began with his involvement in a study of a medical device made by NMT called Starflex, designed to close a type of hole in the heart known as a patent foramen ovale (PFO). The study investigated Starflex as a potential treatment for
migraine, which is significantly more common among people with a PFO, but failed to find benefits.
At a cardiology conference in Washington in 2007, Dr Wilmshurst criticised NMT in relation to the research. His comments were reported by Heartwire, a website, prompting NMT to sue him.
Dr Wilmshurst and his solicitor, Mark Lewis, will meet NMT's legal team next month for mediation. If no deal is reached, the case is expected to go to trial.
Lord Lester, the leading human rights barrister, is drawing up a defamation reform bill, which would prevent lawyers pocketing excessive fees and would also stop foreigners with tenuous links to this country from using British libel laws to silence
Last week Jack Straw, the justice secretary, signalled that Labour would support reform.
Lester, a Liberal Democrat peer who has been consulting senior figures in all parties, believes that his moderate package will secure widespread support and wants a package of proposals available for whoever wins the election. His bill would:
Reform the system of no-win no-fee litigation which makes it cheap for people to bring libel actions but expensive for publications to defend themselves.
End the principle of multiple publication which means that internet sites can be sued over old, archived articles and instead introduce a single publication rule as in the United States.
Prevent foreigners from suing in the British courts unless they can demonstrate that they have suffered real harm in Britain.
Give publications a stronger defence against legal action if they can demonstrate that the article was in the public interest.
Lester said he also wanted to end the imposition of cash damages where someone successfully sues. Instead, he insisted that in most cases an apology from the publication should be enough.
England’s libel laws are unjust, against the public interest and internationally criticised — there
is urgent need for reform this is the message performers, writers, poets, patient groups, legal experts, broadcasters, journalists and others represented by the Coalition for Libel Reform (English PEN, Index on Censorship and Sense
About Science) are sending to politicians urging them to support a bill for major reforms of the English libel laws now, in the interests of fairness, the public interest and free speech.
At the launch of the National Campaign for Libel Reform on Thursday, performers and others urged the public to sign a petition demanding reform of the libel laws, highlighting that for the first time in over a century we have an opportunity to change our
unfair and repressive libel laws.
It has been 18 months since I was sued for libel after publishing my article on
chiropractic. I am continuing to fight my case and am prepared to defend my article for another 18 months or more if necessary. The ongoing libel case has been distracting, draining and frustrating, but it has always been heartening to receive so much
support, particularly from people who realise that English libel laws need to be reformed in order to allow robust discussion of matters of public interest. Over twenty thousand people signed the statement to Keep Libel Laws out of Science, but now we
need you to sign up again and add your name to the new statement.
The new statement is necessary because the campaign for libel reform is stepping up a gear and will be working on much broader base. Sense About Science has joined forces with Index on Censorship and English PEN and their goal is to
reach 100,000 or more signatories in order to help politicians appreciate the level of public support for libel reform. We have already met several leading figures from all three main parties and they have all showed signs of interest. Now, however, we
need a final push in order to persuade them to commit to libel reform.
Finally, I would like to make three points. First, I will stress again - please take the time to reinforce your support for libel reform by signing up at www.libelreform.org. Second, please spread the word by blogging, twittering,
Facebooking and emailing in order to encourage friends, family and colleagues to sign up. Third, for those supporters who live overseas, please also add your name to the petition and encourage others to do the same; unfortunately and embarrassingly,
English libel laws impact writers in the rest of the world, but now you can help change those laws by showing your support for libel reform. While I fight in my own libel battle, I hope that you will fight the bigger battle of libel reform.
Foreigners could be barred from bringing libel actions with tenuous links to the UK under reforms being considered by ministers.
Jack Straw, the justice secretary, is to appoint an expert panel to examine how to prevent overseas litigants from using British courts for defamation cases with little connection to this country.
The new working group of lawyers, academics and newspaper editors will report by mid-March, with the aim of implementing some recommendations before the general election. They will be asked to consider nine areas of concern about Britain's libel laws,
with so-called libel tourism the priority. Related Links
In an interview, Straw said: Libel law is not in the right place — there cannot be any disagreement with that. This group will work fairly swiftly to get a report out before parliament is dissolved.
Straw said he was disturbed by the use of UK courts to silence doctors and scientists. It is very worrying, he said. There ought to be open and robust debate in the scientific and medical world. If someone who has expertise in a field believes
a piece of medical equipment is not doing what it is supposed to do, and is claimed to do, they ought to be free to say so.
Straw is also holding discussions with officials in Brussels about libel jurisdiction in Europe. He said the European commission had acknowledged that the system was operating unsatisfactorily .
The new panel will be asked to consider the case for capping the level of damages that courts can award, and whether a libel tribunal should be established to resolve defamation claims out of court. The experts will examine how to make it easier for
scientists, authors and commentators to defend their words on the basis of fair comment, or in the public interest; and whether the burden of proof should be shifted from the defendant to the litigant.
Large and medium-sized corporations may have to prove malicious falsehood to succeed in a defamation action, while smaller firms and individuals could have to provide more proof that their reputation has suffered. The panel will also consider
whether there should be special rules for internet blogs.
Straw hopes that most reforms can be implemented through secondary legislation , avoiding the need for a time-consuming new parliamentary bill. Libel lawyers, however, insist that the system works well and accuse the government of trying to curry
favour with the media ahead of the general election.
Question: what do McDonald's, Monsanto and Trafigura have in common? Answer: they've all been accused of routinely administering
SLAPPS. These are Strategic Lawsuits Against Public Participation — forms of strategic legal intimidation or gamesmanship employed by large corporations against their critics in order to frighten and harass them, and tie them in legal knots. Such actions
are also designed to demonstrate to would-be critics the fate that awaits them should they dare to publicise their views.
That SLAPPS frequently involve threatening to sue critics for libel makes it particularly important that Index, Sense about Science and English Pen have followed the example of some Australian states and proposed limiting the ability of corporations
and associations to sue, unless they can prove malicious falsehood.
Tougher powers for the Press Complaints Commission and an end to the right of companies to sue for libel will be proposed next week
in a long awaited report by MPs. But the much criticised press watchdog will escape calls for its abolition or for any form of state regulation of the press.
The PCC needs a radical shake-up to turn it into a body that is proactive, rigorous and is taken seriously by the public, the Culture, Media and Sport Select Committee will say. New powers could extend to halting the printing of a newspaper edition.
John Whittingdale, the committee's chairman, says the watchdog should also have the ability to impose large fines.
The commission has come under fire this week for failing to uphold complaints about a Daily Mail article into the death last October of the Boyzone singer Stephen Gately. The column attracted 25,000 complaints from readers who perceived it to be
homophobic. But the PCC said it should be slow to prevent columnists from expressing their views, however controversial they might be . It was a point of principle that newspapers could print views that might offend people, it said.
The complaint made to the PCC that the Daily Mail's column on Gately's death was inaccurate, intrusive and discriminatory was not upheld. Gately died at his holiday home on the island of Majorca. His civil partner Andrew Cowles made a complaint
to the PCC about what had been written by the columnist Jan Moir. The PCC said that it could fully understand why Cowles and a record number of complainants were upset, but ruled that Moir's comments had not breached press guidelines.
In a second move that will please media organisations, the committee is expected to reject calls by Max Mosley, the former Formula One chief, for victims of media exposés to be notified in advance. There are fears that a requirement for
prior notification will lead to judges imposing injunctions that would prevent many investigative stories going to print.
A third key recommendation expected in the report, to be published next week, is that businesses with more than ten employees will lose the right to sue for defamation.
The wideranging report by MPs will cover press standards, privacy, libel and libel tourism , super-injunctions and costs in defamation cases.
When the culture, media and sport select committee began its work more than a year ago, many feared the worst.
Yet the more they probed and the more they heard from organisations defending free expression, the more the MPs began to understand the vital need to distinguish between investigative journalism, a noble cause, and prurient journalism, a less salutary
one. Some aspects of the report are disappointing. One that relates to privacy is potentially alarming. On balance though this is an important step forward, giving cross-party support for fundamental change to England's hideous libel laws.
The committee details the enormous costs faced by publications, particularly small ones, in defending themselves. The report criticises law firms for deliberately stringing out suits so they can ratchet up costs and force people into settling and
apologising, even where they have nothing to apologise for. It stops short of reversing the burden of proof, but it does suggest reinforcing the defence in court for brave reporting and making it harder for companies to sue to protect their reputations.
The committee's chairman, the Conservative MP John Whittingdale, says he and his colleagues were eager to correct the balance which has tipped too far in favour of the plaintiff .
The MPs denounce the ease with which foreign-based oligarchs, sheikhs and their like have used avaricious legal firms and pliant judges to chill the free speech of NGOs, authors and others – so much so that US Congress has considered legislation
to protect Americans from British courts. They criticise Jack Straw, the justice secretary, for not tackling the problem of libel tourism , and the damage to the country's reputation, describing the measures taken by US legislators as a humiliation.
Francisco Lacerda, a professor of phonetics at Stockholm University, is one of two scientists threatened with legal action after the publication of a scientific article condemning the use of lie detectors. The Israeli company Nemesysco, which
manufactures detectors, has written in a letter to the researchers' publishers that the researchers may be sued for libel if they continue to write on this subject in the future.
One year ago, Francisco Lacerda, a professor of linguistics at Stockholm University, and Anders Eriksson, professor of phonetics at the University of Gothenburg, published an article in the International Journal of Speech Language and the Law, a magazine
for voice experts working for the police and security services. The article entitled "Charlatantry in forensic speech science" gave an overview of the last fifty years of research in the field of lie detectors. The article's conclusion is that
there is no scientific evidence to show that lie detectors actually work.
All 3 major political parties in the UK are committed to libel law reform.
Dominic Grieve, the Shadow Justice Minister, told us on Friday that the Conservative party is committed, if elected, to undertaking a fundamental review of the libel laws with a view to enacting legislation to reform them. This reform could
best be done by means of a separate Libel Bill and this is the preferred approach for us.
The Lib Dems made libel law reform a policy in September 2009 after Professor Richard Dawkins addressed their party conference and Jack Straw committed Labour to reforming English libel law at our mass-lobby of Parliament on 23rd March.
The Labour manifesto, released today, pledges To encourage freedom of speech and access to information, we will bring forward new legislation on libel to protect the right of defendants to speak freely.
A Saudi businessman who is being sued over a suspected multibillion-dollar fraud is invoking English libel law in what experts say is the latest high-profile example of libel tourism .
Maan al-Sanea is being sued by banks in New York, Dubai, London and the Cayman Islands over claims he is responsible for more than $15bn of bad debt in banks in Bahrain. But reports of allegations in papers around the world, including the Wall Street
Journal and the The National in Abu Dhabi, have resulted in threats of libel action by lawyers in London, the Guardian has learned.
Journalists covering the case, which could have damaging repercussions for Saudi Arabia's business reputation, have received letters from the law firm Harbottle & Lewis warning of a libel suit in the high court unless articles about Sanea are
The right of free speech is a central democratic principle. But so too is the right of individuals to be protected against
libel and defamation of character. The job of the legislature and judiciary is to balance those conflicting freedoms. In England, that balance has become skewed: libel law gives robust protection to reputation, but it increasingly does so at the expense
of freedom of speech.
The Government is aware of the problem. Nick Clegg has indicated that the coalition will review the libel laws. It is fortunate, then, that on Thursday a Private Member's Bill will be published that offers an ideal model for reform. Lord Lester
of Herne Hill will bring a Defamation Bill before the House of Lords that aims to modernise and simplify the law in several respects. It would bring up to date the defences available for those being sued for libel. It would require claimants to show
real harm before they could sue. It would demand that corporate claimants must prove actual damage. And it would make the normal mode of trial one of a judge sitting alone, rather than a jury.
Lord Lester's Bill also contains measures to cope with the advent of the internet. At the moment, foreign claimants are pursuing cases in the UK courts based on the fact that articles published on the world wide web can be downloaded here. Every
time an article is downloaded, it constitutes a new publication, which resets the one-year limitation period for libel actions, a law that dates from 1849, when the Duke of Brunswick made law by sending his valet to obtain a 17-year-old back copy of
the Weekly Dispatch to sue for defamation.
This is not a Bill to promote irresponsible journalism, or to placate newspapers whingeing about libel. It seeks to restore the right balance between those who pursue public interest reporting and those who seek to defend themselves from malicious
attacks. If nothing is done the result will be increasing self-censorship, because of the uncertainty over what constitutes fair comment and because of the size of damages that can be awarded, which Lord Lester's Bill seeks to limit.
This appeal required the Supreme Court to consider the defence of fair comment in defamation proceedings, in particular the extent to which the factual background giving rise to the comment had to be referred to with the comment itself and be accurately
The respondents are members of a musical group known as The Gillettes or Saturday Night at the Movies.
The appellants provide entertainment booking services.
The Gillettes appointed the booking agency to promote their acts, entering into a contract which included a re-engagement clause, under which any further bookings at the same venue in the following 12 months had to be made through the appellants.
The booking agency arranged a booking for the Gillettes at Bibis restaurant in Leeds. The Gillettes agreed to perform again at Bibis three weeks later without reference to the agency.
The agency emailed the band to complain of the breach of the re-engagement clause. A band member replied, contending that the contract was mearly (sic) a formality and holds no water in legal terms and that the other Gillettes were not bound by
the re-engagement clause as they had not signed the contract.
The booking agency thereafter posted a notice on their website announcing that they were no longer representing the Gillettes as they were not professional enough to feature in our portfolio and have not been able to abide by the terms of their
contract and that following a breach of contract Craig Joseph who runs The Gillettes and Saturday Night at the Movies has advised 1311 Events that the terms and conditions of "contracts hold no water in legal terms". For this reason it may follow
that the artists obligations for your booking may also not be met….'
The Gillettes issued proceedings for libel, alleging that the posting meant that they were unprofessional and unlikely to honour any bookings made for them to perform.
The booking agency relied principally on the defences of justification and fair comment. Both were struck out in the High Court. The Court of Appeal reinstated the defence of justification but upheld the striking out of fair comment.
The Supreme Court unanimously allows the appeal and holds that the defence of fair comment should be open to the agency.
A 'fair comment' must indicate in general terms the facts on which the comment is based, so that the reader was in a position to judge for himself how far the comment was well founded
However this defence had originated in respect of comments about work products such as books and plays, which necessarily identified the product. It had been complicated by developments which extended the defence to cover the conduct of individuals,
where this was of public interest.
Today many people take advantage of the internet to make public comments and the defence would be robbed of much of its efficacy if readers had to be given detailed information to enable evaluation of the comment.
The Supreme Court agreed that there was a case for reform of a number of aspects of the defence of fair comment which did not arise directly in this case.
The whole area merited consideration by the Law Commission or an expert committee. The only more general reform being made by this judgment was the re-naming of the defence from fair comment to honest comment .
Applying the law to the facts of this case, the posting by the booking agency referred to the breach of contract relating to the Bibis restaurant, and to the Gillettes' email, and these facts could be relied on. The email arguably evidenced a
contemptuous approach to the Gillettes' contractual obligations to the agency. The email as quoted arguably evidenced a contemptuous attitude to contracts in general.
It would be a matter for the jury to decide whether the inaccuracy in the quotation made a significant difference.
Major changes to Britain's antiquated defamation laws will be outlined by ministers with the publication of a bill to provide greater protection for free speech and an end to libel tourism .
The draft Defamation Bill will propose a new defence of honest opinion , which will protect academics from being sued by companies and special-interest groups for damaging their reputations. There is currently a defence of fair comment ,
but it has to be based on stated and true facts and rarely succeeds.
There will also be new rules to stop celebrities and businessmen from bringing libel cases in Britain unless they can prove that the publication caused them substantial harm in the country. Foreign litigants will have to sue in the country where
most of the damage to their reputations was done, rather than using the English courts on the basis that the publication was available in Britain.
Under the new rules, it will be up to a judge to decide whether substantial harm has been caused to reputation in this country. It is expected that if the main damage was done outside this country, UK courts will not accept jurisdiction.
Shameful libel laws kill debate and smother scientific inquiry. Our coalition bill will let the press be free
We live in an information age, with knowledge flowing in unprecedented ways. Recent weeks have been dramatic proof of that. Twitter helped oust Hosni Mubarak. Thanks to global, 24-hour news reporting, Muammar Gaddafi's actions cannot be hidden. Global
citizens watch in real time as events unfold in Japan.
In such an age ideas are everything and openness reigns supreme. Power rests, increasingly, on winning the argument, and censorship has no place.
The arrival of the draft defamation bill was cheered in the US, where the long reach of libel tourism had prompted domestic bills shielding Americans from judgments that chill free speech from abroad. President Obama just last August signed the
SPEECH Act into law. It wasn't aimed explicitly at the UK; rather, it protects Americans from the enforcement of all libel judgments ruled against them in countries that don't afford the same free speech protection as the US First Amendment.
But it was not a secret that the legislation was triggered by my fight against the imposition of English libel laws, said Rachel Ehrenfeld, an American academic whose run-in with a wealthy Saudi businessman in British court became the galvanizing
case for libel tourism in the US: I thought that since the United States had fought and won its independence from England in 1776, Ehrenfeld said, there was no reason for Americans to abide by repressive English law.
Ken Clarke's Justice Department is considering sending rich and famous claimants to the Press Complaints Commission for arbitration
before they are allowed to take their case to court.
Ministers say the system would be cheaper and quicker, and hope it could deter foreigners from flocking to our courts in so-called libel tourism .
At a meeting of a Parliamentary Committee investigating changes to defamation laws, Justice Minister Lord McNally told MPs that he was tempted to make complainants go to the PCC first: I do think that a credible Press Complaints Commission
-- one that had general respect and could deliver non-legal fast justice in areas where people complained of press abuse -- is preferable to the law. If complainants want a rapid correction then mediation does offer a cheap and speedy way of addressing
Clarke said that the PCC would have to beef itself up to be able to take on the role, and would have to do more to ensure it had the confidence of the public.
For those who care about free expression in the UK, and particularly the reform of our invidious libel laws, this is a crucial week. Today and tomorrow, the UK Supreme Court hears the Times's attempt to overturn an appeal court ruling in a libel case
brought against it by Metropolitan Police officer Gary Flood.
Reforms to England's libel laws will not do enough to protect free speech. A powerful parliamentary committee believes further steps are needed to prevent big corporations using their financial muscle to gag opponents by threatening legal action.
It also wants extra measures to protect scientists and academics who are publishing legitimate research, and to prevent trivial claims ever reaching court.
The committee has been scrutinising the Coalition's proposals to end the international embarrassment that sees rich and powerful foreigners flocking to our courts to silence critics.
The report from the joint committee on the draft Defamation Bill says many of the Government's proposals, particularly a move to end trial by jury except in the most serious cases, are worthwhile . But it says the plans are modest and do
not address the key problem in defamation law, the unacceptably high costs associated with defending cases.
Recommendation that websites be held responsible for anonymous comments
Websites should have protection from defamation cases if they act quickly to remove anonymous postings which prompt a complaint, a report says. A joint parliamentary committee tasked with examining libel reform says it wants a cultural shift so
that posts under pseudonyms are not considered true, reliable or trustworthy , But it says websites which identify authors and publish complaints alongside comments should get legal protection.
The committee proposes a new notice and takedown procedure for defamatory online comments - aimed at providing a quick remedy for those who are defamed and to give websites which use the procedure more legal protection.
It recommends that where complaints are made about comments from identified authors - the website should promptly publish a notice of the complaint alongside it. The complainant can then apply to a court for a takedown order - which if granted,
should result in the comment being removed, if the website is to avoid the risk of a defamation claim.
But where potentially defamatory comments are anonymous, the website should immediately remove them on receipt of a complaint, unless the author agrees to identify themselves, the report says. The author of the comment can then be sued for defamation but
if a website refuses to take down an anonymous remark it should be treated as its publisher and face the risk of libel proceedings .
The report also says a website could apply to a court for a leave-up order, if it (is rich enough and) considers the anonymous comment to be on a matter of significant public interest.
But Mumsnet, a parenting website, says many of its members rely on the ability to ask questions or post comments anonymously. Many of the women posting messages do so under a user name , rather than their real name - and the site is worried the
proposal will mean more people demanding messages be taken down.
Its co-founder, Justine Roberts, said while it was right to stop people from assassinating the character of others from behind the cloak of anonymity the report did not recognise how useful anonymous postings were in allowing people to speak
honestly about difficult real-life situations . The recommendations could have a chilling effect on sites like Mumsnet where many thousands of people use anonymity to confidentially seek and give advice about sensitive real-life situations.
Under the current law, websites are liable for defamatory statements made by their users. If they fail to take down a post when they receive a complaint, they risk being treated as the primary publisher of the statement.
So how is a website to know if users correctly identify themselves anyway?
In an exclusive extract from You Can't Read This Book , the Observer columnist Nick Cohen presents a damning indictment of how the English legal system helps the wealthy and powerful suppress inconvenient truths:
At their best, journalists expose the crimes of the powerful and there were plenty of powerful people worthy of examination in the Britain of the early 2000s. London was awash with money as it competed with Manhattan to be the
hub of global finance.
If journalists tried to do what they should do and investigate them, Britain also gave the oligarchs a further privilege: the power to enforce a censorship that the naive supposed had vanished with the repressions of the old establishment.
Among the many attractions London offered the oligarchs was a legal profession that served them as attentively as the shop assistants in Harrods food hall.
With an aristocratic prejudice against freedom of speech, the judges imposed costs and sanctions on investigative journalism that would have been hard to endure in the best of times, but were unbearable after the internet had undermined
the media's business models. Instead of aiming its guns at the worst of British writing, the law of libel aimed at the bravest.
Ex-New Zealand cricketer Chris Cairns, who is suing a former Indian Premier League boss over a Twitter posting, has his case heard by
the UK High Court in the latest example of libel tourism.
Chris Cairns is taking legal action over a January 2010 tweet by Lalit Modi alleging that he was involved in match fixing.
The action is taking place in London despite claims by Modi's lawyers that there were only 35 readers of the tweet in England and Wales. Evidence for Cairns put the figure at around 100.
Padraig Reidy of Index on Censorshop said:
The Cairns case is one of the most clear-cut cases of libel tourism we have seen.
While cricket is an international game, the alleged libel took place in India, concerned conduct in India, and primarily affects Cairns's reputation in India.
Plans to prevent libel tourism were put forward by the Government last year. The proposed new rules would block celebrities and businessman from bringing such actions in this country unless it could be proved that publication caused them substantial
harm in England and Wales.
My Government intends to bring forward measures to maintain the ability of the law enforcement and intelligence agencies to access vital communications data under strict safeguards to protect the public, subject to scrutiny of draft clauses.
So there we have it -- the Communication Capabilities Development Programme will have it's day in Parliament. We don't know what the draft clauses will be or when we will see them, but the Government remains intent on pursuing legislation in the coming
session of Parliament.
The Home Office have been very good at saying what the problem is, but seem intent on keeping the technical details of what they are proposing secret. Is it any wonder that the public are scared by a proposal for online surveillance not seen in any other
The Snoopers' Charter : the Communications Data Bill is about to be published by the government.
When the coalition was elected, they promised that:
We will end the storage of internet and email records without good reason (1)
Nick Clegg added:
We won't hold your internet and email records when there is just no reason to do so. (2)
Now, the government is saying that companies like Facebook and Google must keep your email and messaging records for 12 months, whether or not you are under suspicion: and that the records (not the content) must be handed over on the say-so of a police
The government are asking for powers to intercept and collect information about who you talk to online by snooping on your Internet traffic, in case companies based outside the UK don't agree to hand over your information.
That makes us all a suspect. Instead of being under surveillance when there is evidence of wrongdoing, you will be under suspicion by default.
As announced in the Queen's Speech, the Government will introduce a law to protect freedom of speech and reform the law of defamation .
The libel reform campaign, nearly 100 organisations and 60,000 supporters including leading names from science, the arts and public life have been calling for legislation to reform the libel laws since December 2009. Congratulations to all on this
Now we need to see the details of the Bill and will work to ensure the reforms will do away with unwarranted chilling, bullying effects of the current laws.
Over the coming months, the Libel Reform Campaign will continue to fight for:
a public interest defence so people can defend themselves unless the claimant can show they have been malicious or reckless.
a strong test of harm that strikes out claims unless the claimant can demonstrate serious and substantial harm and they have a real prospect of vindication.
a restriction on corporations' ability to use the libel laws to silence criticism.
provisions for online hosts and intermediaries, who are not authors nor traditional publishers.
The Bill contains a number of measures of interest to ISPs, including a single publication rule and new defences for hosting providers and operators of websites with user-generated content.
The single publication rule
Currently, a claim for defamation can be brought up to one year after publication. This limitation is measured from the last time the allegedly defamatory article was published. However, viewing an article online essentially involves the host
transmitting a copy of that article over the Internet, which counts in legal terms as republishing the article. This means that there is, in effect, no time limit for making a defamation claim against the publisher of an online article, since the law
considers the article to be republished every time it is viewed.
The Defamation Bill solves this problem by introducing a single publication rule. If the Bill becomes law, the limitation period will be measured from the first time an article is published, rather than the last, as long as the manner of a subsequent
publication is not materially different from the manner of the first publication . This should go some way towards placing online content on an equal footing with offline content.
New defences for website operators
Under current defamation law, website operators and hosting providers risk being found liable for defamation if they refuse to take down content that a court later finds to be defamatory. A blogger could, for example, be held liable for failing to remove
a defamatory comment posted by one of her readers, while the ISP that hosts the blog could in turn be liable for failing to remove defamatory statements posted by the blogger.
The new Defamation Bill provides a weak looking defence in cases where the defamatory contents was posted by someone other than the website operator or host:
5 Operators of websites
It is a defence for the operator to show that it was not the operator who posted the statement on the website. The defence is defeated if the claimant shows that---
it was not possible for the claimant to identify the person who posted the statement, the claimant gave the operator a notice of complaint in relation to the statement, and the operator failed to respond to the notice of complaint
in accordance with any provision contained in regulations.
This seems hardly worth having as websites are generally are not in a position to meaningfully identify posters, and so the defence simply will not apply in the vast majority of cases.
Laws that led to London being dubbed the libel capital of the world will be reformed after peers in the Lords voted to pass the defamation
bill, ending a three-year campaign led by Liberal Democrat peers Lord McNally and Lord Lester.
Libel reform campaigners said they were delighted overall that defamation reform was finally passing into law, although they were disappointed by the failure of a bid to bar private companies contracted to run schools, prisons or healthcare from
suing ordinary citizens who criticised the work they do for the taxpayer. In the end it was the Lib Dems and Tories that did the dirty and killed some of the valuable reforms.
However, the bill is a landmark piece of legislation and should provide more protection for individuals and organisations, including newspapers and broadcasters, which criticise big companies.
The new law will also stop cases being taken in London against journalists, academics or individuals who live outside the country, denting the libel tourism industry, but not ending it altogether, as foreigners will still be able to lodge claims in the
The bill will now return to the Commons on Wednesday for formal approval with no possibility of fresh amendments.
Kirsty Hughes, chief executive of Index on Censorship said she was delighted that corporations will now have to prove financial loss before they sue for libel but added it was a pity the government voted against Labour's amendment to stop
public money being used to stop citizen critics .
Comment: Victory for free speech as libel bill passes
Today, 24 April, saw history made. The UK parliament has passed a new Defamation Bill, which will now go on to Royal Assent. A major victory
against censorship in Britain and beyond has been won, with England's notorious libel laws changed in favour of free speech.
The new law protects free speech. There is a hurdle to stop vexatious cases. We now have a bar on libel tourism so non-EU claimants will now need to prove that harm has been done here. For the first time there will be a statutory public interest defence
that will ask defendants to prove they have acted reasonably (a better test than the more burdensome Reynold's test of responsible publication). There is also a hurdle to stop corporations from suing unless they can prove financial harm.