Tag: libel tourism

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.

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:

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.

Thawing the libel chill?

Science Gallery logoOn Thursday evening, from 6:30pm to 8:00pm, the Science Gallery in TCD will host what promises to be a fascinating event on the chilling impact of the law of libel on scientific debate:

Libel Chill with Simon Singh and Peter Wilmshurst

Libel reform has become increasingly relevant in scientific research and journalism in the UK and Ireland, as highlighted in recent times by the high profile case of Simon Singh. Libel laws have been accused of intimidating journalists, scientists and publishers into silence for fear of legal persecution. The effect has been dubbed “libel chill” and the Libel Reform Campaign argues ‘Freedom to criticise and question, in strong terms and without malice, is the cornerstone of argument and debate, whether in scholarly journals, on websites, in newspapers or elsewhere. Our current libel laws inhibit debate and stifle free expression. They discourage writers from tackling important subjects and thereby deny us the right to read about them.’

Master of ceremonies for the evening will be Myles Dungan, and speakers will include Simon Singh, who successfully defended a two year libel battle with the British Chiropractic Association, and 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, will also speak at the event.

There will be much discussion of amending the libel laws. For once, Irish law is ahead of the curve. The Defamation Act, 2009 eventually reformed Ireland’s outdated libel laws (though, of course, more could have been done). English law is likely soon to follow suit.

Today’s Times Online carries a very important article by Anthony Lester (Lord Lester of Herne Hill, QC, human rights lawyer, free speech campaigner, Lib Dem peer, and Adjunct Prof of Law, UCC) argues that England’s law of libel must be rebalanced in the scales of justice, since it has a chilling impact on free speech, which is the lifeblood of democracy. English libel law, he says, “is notoriously costly, complicated and stifling of free speech”. The programme for government for the UK’s new government promises to “review libel laws to protect freedom of speech”. Lester therefore proposes to publish on Thursday (just in time for the Science Gallery event) a Private Member’s Bill on Defamation to help in that review. An Editorial in the Times urges the UK’s government to “seize Lord Lester’s template of legal sanity” which thoroughly “deserves to become law”. It is the latest step in an ongoing campaign for reform of the UK’s libel laws, and it is discussed by Lester on BBC radio’s Today programme this morning. Listen, and then buy a ticket for Thursday’s event.

Libel tourism, online defamation and multiple publication

In the UK, the Ministry for Justice has just begun a consultation process seeking views on the “multiple publication rule” at common law under which each publication of defamatory material can form the basis of a new defamation claim, and in particular on the effects of this rule in relation to online archives. If this rule is reformed, then a major plank of the libel tourism phenomenon, by which London has become the libel capital of the Western world and home to libel actions that have little to do with its jurisdiction, will quite properly have been removed (see BBC | ComputerWorld | Greenslade | Guardian | Index on Censorship Free Speech blog | Information Overlord | OUT.law | Slaw | TechWatch | Times Online).

The multiple publication rule was established in Duke of Brunswick v Harmer (1849) 14 QB 185 (already discussed on this blog), reaffirmed in Loutchansky v Times Newspapers [2002] QB 783, [2001] EWCA Civ 1805 (05 December 2001), and upheld by the European Court of Human Rights (ECHR) in Times Newspapers Ltd (Nos 1 and 2) v the United Kingdom Applications 3002/03 and 23676/03, [2009] ECHR 451 (10 March 2009). However, it seems to have been excised from Irish law by section 11 of the new Defamation Act, 2009, which provides

Multiple publication
11.—(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.

This is not an easy section to parse; but it seems to me that two subsequent clicks on the same internet archive article constitute “the same defamatory statement” to two persons, but not contemporaneously; and if this is right, then section 11 reverses the common law position. The UK consultation, in effect, then, is whether UK law should come into line with Irish law. The Ministry places this consultation in the context of a wider reform of defamation law currently underway, which includes the decriminalisation of seditious libel currently before Parliament, and a consultation earlier this year on controlling costs in defamation proceedings (update: more here). Moreover, it is plainly a response to the ECHR decision in the Times Newspapers, which, whilst upholding the multiple publication rule, nevertheless emphasised that

48. … while an aggrieved applicant must be afforded a real opportunity to vindicate his right to reputation, libel proceedings brought against a newspaper after a significant lapse of time may well, in the absence of exceptional circumstances, give rise to a disproportionate interference with press freedom under Article 10.

In other words, although the multiple publication rule still survives in the UK, it is not necessarily entirely compatible with free speech norms. From the webpage on the multiple publication consultation:

Defamation on the internet: Ministry of Justice seeks your views

A debate on aspects of defamation law, and how it works in the internet age, was launched today by the Ministry of Justice. Part of the law on defamation originates from the 1840s, long before the internet arrived and changed the way that opinions and comment are often communicated. Today’s consultation seeks views on specific issues that could interest anybody who posts or publishes on the internet, particularly those who maintain online archives. …

Jack Straw, Secretary of State for Justice, said:

… Freedom to hold and express opinions is a right that is vital to democracy, as is respect for the rights and freedoms of others. How these principles are balanced in the fast-changing internet age is a fascinating debate.

To encourage responses, there is a short list of 8 questions, to which my off-the-top-of-my-head answers are as follows:

1. The multiple publication rule in the UK should be abolished and replaced by a single publication rule, just as the new Irish Act has done. (more…)

Death of a libel tourist

Cover of 'Funding Evil' by Rachel Ehrenfeld via WikipediaThe letters’ page of the Irish Times as often features well-crafted prose and well-argued cases as it does pithily funny remarks and occasionally insane arguments. In any event, a letter often serves either to remind me of an article I had not properly considered, or to bring to my attention a piece I had simply overlooked at the time. There is a letter in today’s Irish Times which serves the latter function, referring to a piece last week which I had missed:

‘Libel tourism’ and free speech

Madam, – As the only American author who stood up to Khalid bin Mahfouz’s campaign to silence American writers and publishers, I would like to note that the Saudi billionaire did not win his many libel lawsuits in the UK on merit, as your newspaper strongly suggests (World News, September 8th). He won because in addition to his unlimited financial resources, he used the plaintiff-friendly British libel laws to intimidate most into submission.

Mr Mahfouz frequently used archaic British libel laws that allow “libel tourism,” as a weapon to silence American publishers and writers in print and on the internet. His passing does not end the threat of libel tourism.

British libel laws dating back to 1849 continue to stifle Americans’ constitutional right to free expression.

Your article didn’t mention that in May 2008 New York State was the first to pass the Libel Terrorism Protection Act, protecting New Yorkers from libel tourists like Mr Mahfouz. Illinois and Florida passed similar laws and in California the governor is about to sign the anti-libel tourism law.

Moreover, as a direct result of Mr Mahfouz’s libel tourism, the bi-partisan Free Speech Protection Act 2009 is now pending in Congress. This bill would protect Americans’ free speech rights from foreign libel judgments that do not provide protection similar to our Constitution, and allow for damages to deter libel tourists.

Rachel Ehrenfeld, PhD (Author of Funding Evil: How Terrorism is Financed and How to Stop It)
Director, American Center for Democracy,
West 56th Street,
New York,

Bonus links: First, Rossa McMahon has also noticed and commented on Ehrenfeld’s letter. Second, at Index on Censorship, Ehrenfeld has a much longer piece making similar points.

FoE in the EHRLR

EHRLR cover, via ECHR BlogThe current issue of the European Human Rights Law Review ([2009] 3 EHRLR | table of contents (pdf) | hat tip ECHR blog) contains a wonderful piece by my colleague Dr Ewa Komorek entitled “Is Media Pluralism a Human Right? The European Court of Human Rights, the Council of Europe and the Issue of Media Pluralism” [2009] 3 EHRLR 395.

Here is the abstract (with added links):

The need for pluralist media stopped being purely a national concern a long time ago and thus it has for decades been subject to scrutiny by the Council of Europe and the European Court of Human Rights. Media pluralism has always come to their agenda as a prerequisite for freedom of expression guarded by Article 10 of the European Convention of Human Rights. It is important to distinguish the two ‘faces’ of media pluralism: internal (which may also be called content pluralism or diversity) and external (or structural). This article focuses on television broadcasting and argues that while the Court of Human Rights has essentially been successful in safeguarding internal pluralism, the protection of structural pluralism proved more difficult to achieve by means of the Court’s case law. This prompted the Council of Europe to step in and attempt to fill the gap with regulatory proposals. The conclusion is that although there is still a need for a binding ex ante action at the European level aimed at safeguarding pluralism in this ever concentrating sector, the efforts of the Council of Europe and the judgments of the European Court of Human Rights are vital for awareness raising and stimulating debate.

In Ewa’s view, therefore, media pluralism should be given a far stronger voice in European debates than it currently enjoys, and one way to achieve this would be to strength its status as a right not only in the Council of Europe but also in the EU. For example, Article 11(2) of the EU Charter of Fundamental Rights provides that “the freedom and pluralism of the media shall be respected”, and Ewa’s compelling analysis of the cognate Article 10 can go a long way towards giving full effect to this provision. But this is not the only interesting piece in the journal. Indeed, this issue is a veritable Aladdin’s Cave of fascinating articles: (more…)

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. (more…)