Category: Libel tourism

Declaration of the Committee of Ministers of the Council of Europe on “Libel Tourism” & Freedom of Expression

From the Declaration of the Committee of Ministers on the Desirability of International Standards dealing with Forum Shopping in respect of Defamation, “Libel Tourism”, to Ensure Freedom of Expression, adopted by the Committee of Ministers on 4 July 2012 at the 1147th meeting of the Ministers’ Deputies:

13…. the Committee of Ministers:

– alerts member States to the fact that libel tourism constitutes a serious threat to the freedom of expression and information;

– acknowledges the necessity to provide appropriate legal guarantees against awards for damages and interest that are disproportionate to the actual injury, and to align national law provisions with the case law of the Court;

– undertakes to pursue further standard-setting work with a view to providing guidance to member States.

Multiple publication; multiple reform?

Multiple PublicationAt common law, the rule in Duke of Brunswick v Harmer (1849) 14 QB 185 established that each individual publication of a libel gives rise to a separate cause of action, subject to its own limitation period; hence, if the same publication is read many years later, that is a new publication giving rise to a new cause of action. It has been abolished in Ireland by section 11 of the Defamation Act, 2009 (also here), which provides:

(1) Subject to subsection (2), a person has one cause of action only in respect of a multiple publication.

(2) A court may grant leave to a person to bring more than one defamation action in respect of a multiple publication where it considers that the interests of justice so require.

(3) In this section “multiple publication” means publication by a person of the same defamatory statement to 2 or more persons (other than the person in respect of whom the statement is made) whether contemporaneously or not.

Moreover section 3 of the Rules of the Superior Courts (Defamation) 2009 (SI No 511 of 2009) provides for procedures relating to applications under section 11, though I am not aware of any caselaw yet on that section. Recent UK libel reform processes have recommended a similar provision (Ministry of Justice: 2009 | 2011). Now, I learn from Judith Townend’s excellent Meeja Law blog that the First Report of the UK’s Parliamentary Joint Committee on the Draft Defamation Bill:

accepts the Draft Bill’s proposal for a Single Publication Rule, which would limit defamation claims to one year following initial digital publication, as long as the contents are substantially the same as the original (the court still has discretion to extend the one-year time-period “whenever it is just to do so”). Additionally, the Committee called for a widening of the clause’s remit, to protect not just the original publisher but anyone who republishes the same material:

The single publication rule should protect anyone who republishes the same material in a similar manner after it has been in the public domain for more than one year. It should be clarified that the simple act of making a paper-based publication available on the internet, or vice versa, does not in itself amount to republishing in a “materially different” manner.

This is a fascinating suggestion, going much further than the existing UK proposals position, but it risks making an already over-elaborate clause even more complex. I much prefer the crisp section 11, which on its face already reaches the issue considered by the UK’s Joint Committee. Their discussions do demonstrate that the issue is not straightforward, and may yet need to be revisited; but, for the time being, I think tha section 11’s lack of embellishment gets the balance about right.

The UK’s libel reform proposals are a good start

UK Ministry of Justice logo, via their siteThe UK’s Ministry of Justice has announced its long-awaited consultation on the reform of the UK’s libel laws. Much of the territory covered by draft Defamation Bill was covered in Ireland by the Defamation Act, 2009 (also here), though there are some important differences as well. In this post, I want briefly to compare and contrast the UK Bill [the Bill] with the Irish Act [the Act]. To spoil the conclusion (for those of you who won’t read further than this opening paragraph) the Bill is largely in line the Act, and, in this respect, I am reminded of the Irish adage “tosach maith, leath na h-oibre“: a good start is half the work. In the end, that is what the Bill is: a good start.

Similarities
Clause 2 of the Bill provides for a defence of responsible publication on matter of public interest. In many ways, this analagous to the defence of fair and reasonable publication on a matter of public interest contained in section 26 of the Act. But clause 2 is a far less mealy mouthed version of the defence than the unworkably narrow section 26 is: there are fewer hurdles to be jumped by a defendant seeking to rely upon it.

Clause 3 of the Bill provides for a defence of truth (to replace the existing defence of justification), and this is analgous to the defence of truth contained in section 16 of the Act. The Bill requires that the “imputation conveyed by the statement complained of is substantially true” whereas the Act requires that it be true “in all material respects”. Only time – and expensive cases – will tell whether this is a distinction with any real difference.

Clause 4 of the Bill provides for a defence of honest opinion (to replace the existing defence of fair comment), and this is analgous to defence of honest opinion contained in section 20 of the Act. However, the Bill is more objective than the Act – the Act requires that the opinion is honestly held by the defendant, whereas the Bill simply requires that an honest person could have held the opinion. Moreover, as with the public interest defence, the Act places more hurdles in the way of the defence than the Bill does.

Clause 5 of the Bill provides for some technical amendments to the statutory occasions of qualified privilege, which differ in the details from the similar amendments worked by section 18 and Schedule 1 of the Act.

Clause 6 of the Bill replaces the common law multiple publication rule with a single publication rule, analgous to the reform worked by section 11 of the Act. This was already the subject of a consultation in the UK, and is a very welcome proposed reform, but – unlike the situation in respect of the public interest and honest opinion defences – the UK clause is far more elaborate than the Irish section. In this respect, I much prefer the starkness of the defintion in the Act to the over-elaborate technicalities in the Bill.
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In the Dock, in Paris « EJIL: Talk! « Libel Tourism and Academic Freedom

If I lose, I will stand convicted of a crime, branded a criminal. The complainant will not enjoy a windfall as in London, but considerable moral satisfaction. The chilling effect on book reviewing well beyond France will be considerable.

In preparing a defense we faced a delicate challenge. The case was otiose for two reasons: It was in our view an egregious instance of ‘forum shopping,’ legalese for libel tourism. We wanted it thrown out. But if successful, the Court would never get to the merits –  and it was important to challenge this hugely dangerous attack on academic freedom and liberty of expression. Reversing custom, we specifically asked the Court not to examine our jurisdictional challenge as a preliminary matter but to join it to the case on the merits so that it would have the possibility to pronounce on both issues.

Prof. Joseph Weiler discusses his experiences of being on trial for criminal defamation in France.

Late to the defamation party

In the UK, the Deputy Prime Minister, Nick Clegg (pictured left) has announced significant reforms of Britain’s libel laws, which I consider a very good thing.

During a wide-ranging speech today on civil liberties, he said:

We will be publishing a draft defamation bill in the Spring. We intend to provide a new statutory defence for those speaking out in the public interest, whether they be big broadcasters or the humble blogger. And we intend to clarify the law around the existing defences of fair comment, and justification.

We believe claimants should not be able to threaten claims on what are essentially trivial grounds. We are going to tackle libel tourism. And we’re going to look at how the law can be updated to better reflect the realities of the internet. Separately, we are also going to address the high costs of defamation proceedings. … Our aim is to turn English libel laws from an international laughing stock to an international blueprint.

Welcome though this is, as with many political developments, it is in danger of being overspun or at least oversold. According to yesterday’s Guardian:

Britain will become the first country to ask parliament to set out its libel laws, and provide greater clarity, his officials said.

No so, Mr Clegg, not so. As I have frequently discussed on this blog, Ireland introduced a full-scale reforming Defamation Act in 2009, which came into force on 1 January 2010. Similarly, in Australia, a uniform Defamation Act, 2005 was passed in each of the states and came into force on 1 January 2006. Indeed, New Zealand introduced a comprehensive Defamation Act in 1992, and it came into force on 1 February 1993. Far from being “first”, the UK is coming very late to this particular party. But better late than never!

Some Thoughts on Libel Tourism by Andrew Klein (via SSRN)

Some Thoughts on Libel Tourism

by Andrew R. Klein, Indiana University School of Law, via SSRN

 

This paper addresses the topic of “libel tourism,” a phrase used to describe cases where plaintiffs sue for defamation in a foreign jurisdiction and then seek to enforce judgments in the U.S., where the outcome might have been different because of protections for speech embodied in the United States Constitution. … [It] reviews recent reactions from legislators, courts, and commentators, and then offer some thoughts about whether these reactions appropriately balance concerns of comity and free speech. Ultimately, the essay concludes that U.S. attempts to address the issue of libel tourism have been quite broad, and suggests a more cautious approach that would better contribute to maintaining America’s role as a leader in the evolving world of tort law.

 

Do libel laws chill scientific debate?

Keep libel out of science logo, via their websiteA few weeks ago, the Science Gallery in TCD hosted a fascinating event on the chilling impact of the law of libel on scientific debate. Chaired by Myles Dungan, the speakers were Simon Singh, who successfully defended a two year libel battle with the British Chiropractic Association, his lawyer Robert Dougans, cardiologist Peter Wilmshurst who is currently being sued for libel in the biggest ongoing medical libel case, and his lawyer Mark Lewis. A video of the event is now up on YouTube.

The cases against Singh and Wilmshurst are English, but, as an article in today’s Irish Times shows, Irish law is to the same effect:
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The impact of the UK’s libel amendments on Irish law

Reform of the UK’s libel laws could have interesting consequences for Irish law. A cartoon from a story in this week’s Economist sets the scene:


Cartoon from the Economist, via their blog

A few extracts from the article accompanying the above cartoon:

Improving a reputation

England’s strict libel laws face a shake-up

Selling legal services to people in other countries is a lucrative business for Britain, but where the libel industry is concerned the trade is increasingly unwelcome. Foreigners can sue each other in English courts, even when publication has been almost wholly elsewhere. .. For foreigners and locals alike, mounting a defence is costly and tricky. …

The fear of libel suits may chill academic debate (big medical companies have sued several scientists for criticising their products). Outfits campaigning against beastly regimes abroad say they have had to defang their reports because of the threat of litigation.

Many want the law to be fairer, simpler, quicker and cheaper. … Anthony Lester QC … submitted a private member’s bill which would make most of the important changes that reformers have been seeking. One would replace the flimsy “fair comment” defence (which easily gets tied up in questions of fact) with a new one of “honest opinion”. … A second change would replace the “responsible publication” defence, which puts more weight on procedure than substance, with one of “public interest”. … A third part of the bill would make it harder for corporate bodies to sue. Moreover, any foreign claimant would have to show that he had suffered “substantial harm” in England. …

Lord Lester’s Bill is available here, analysed on Banksy’s blog and on Inforrm’s blog; a note of caution is sounded by Zoe Margolis whilst Paul Tweed is critical. Though important, the Bill is simply one part of the current conversation about libel reform in the UK. Another important part is the difference of opinion between two retired Law Lords (Hoffmann and Steyn).

Of course, be careful what you wish for. In Ireland, the Defamation Act, 2009 has reformed our libel laws. However, by the time it had worked its way through the Department of Justice and the Oireachtas, it was considerably watered down by departmental conservatism and political compromise; but now that it has been enacted, there is little political will for further reform. Lord Lester’s bill is carefully drafted; but if it suffers the same fate as the Irish bill did, it may not achieve its intended end, and the opportunity may be lost.

Finally, if Lester’s Bill, or some recognisable version of it, becomes law, then English law will have achieved a better balance in defamation law than Irish law does. It could also have profound effects on the future of Irish defamation law. The 2009 Act it is an incomplete reform: its new centerpiece defence of fair and reasonable publication is unworkable; its changes relating to damages are very timid; it confirms that corporations can sue for damages; and it does nothing to prevent libel tourism (the phenomenon of plaintiffs touring for the most congenial legal climate in which to take a libel action). Ireland would then be faced with the following choice. Dublin could replace London as the libel tourists‘ most favoured destination; or we could introduce similar amendments ourselves. It will be interesting to see how all this pans out.