Libel Tourists – Is Ireland selling what they’re buying?

UN HRC logoIn July, the UN Human Rights Committee, as part of its triennial review of member states’ compliance with human rights norms, criticised the UK’s record on freedom of expression (CCPR/C/GBR/CO/6) in the following terms:

25. The Committee is concerned that the State party’s practical application of the law of libel has served to discourage critical media reporting on matters of serious public interest, adversely affecting the ability of scholars and journalists to publish their work, including through the phenomenon known as “libel tourism.” The advent of the internet and the international distribution of foreign media also create the danger that a State party’s unduly restrictive libel law will affect freedom of expression worldwide on matters of valid public interest …

The State party should re-examine its technical doctrines of libel law, and consider the utility of a so-called “public figure” exception, requiring proof by the plaintiff of actual malice in order to go forward on actions concerning reporting on public officials and prominent public figures, …

(The report is on this page, scroll down to the UK section, click on the E in the right-most column; the UN server won’t accept a deeper link, unfortunately.)

Reports and reactions: Amnesty | Blogzilla | Guardian here and here | Independent here and here | Jurist | Media Law Prof Blog | Press Gazette | Telegraph here and here | Scotsman.

The Committee also raised issues with the application of the Official Secrets Act 1989 (should be more “narrowly utilized” (para 24)) and the Terrorism Act 2006 (possibly a “disproportionate interference with freedomof expression” (para 26)) but I want to focus here on the libel issues. First, the issue of libel tourism has featured already on this site; yesterday morning’s New York Times had this to say about it (hat tips: Andrew and Bridget):

‘Libel Tourism’: When Freedom of Speech Takes a Holiday

By Adam Cohen

When Rachel Ehrenfeld wrote “Funding Evil: How Terrorism Is Financed and How to Stop It,” she assumed she would be protected by the First Amendment. She was, in the United States. But a wealthy Saudi businessman she accused in the book of being a funder of terrorism, Khalid bin Mahfouz, sued in Britain, where the libel laws are heavily weighted against journalists, and won a sizable amount of money.

The lawsuit is a case of what legal experts are calling “libel tourism.” … The upshot is a First Amendment loophole. … The New York State Legislature passed a bill that some are calling “Rachel’s law,” which blocks enforcement of libel judgments from countries that provide less free-speech protection than the United States. Gov. David Paterson signed it on May 1. A similar, bipartisan bill has been introduced in Congress. …

“Libel tourism” is a threat to America’s robust free-speech traditions, … The result is what lawyers call a “chilling effect” — authors and publishers may avoid taking on some subjects, or challenging powerful interests. …

Reflections of Dublin, via the website.In its report on Ireland (CCPR/C/IRL/CO/3), the Committee did not make any comment about the state of Irish libel law (report page, scroll down to the Irish section, click on the E in the right-most column). However, in its initial assessment (same link, click on the E in the third column from the left) it welcomed the progress of the Defamation Bill, 2006. Nevertheless, it could easily have made the same criticisms of Ireland’s libel laws as did of the UK’s. If the UK’s common law developments in the realm of public figures, then the similar but more tentative Irish common law developments or the partial statutory equivalent proposed in the Bill are hardly likely to pass muster either. And if these defences don’t discourage libel tourism either in the UK or in Ireland, then Dublin might be just as welcoming a venue as London for transatlantic shoppers.


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