Saturday, January 16, 2010

Free Speech Is Not For Sale - a publication from English Pen

This morning I received this publication from English PEN: FREE SPEECH IS NOT FOR SALE - The Impact of English Libel Law on Freedom of Expression. It's clearly written and very interesting. I also think it is rather important and so thought I'd write a summary on this blog.

It is a report jointly written by members of English Pen and the Index on censorship and is the result of an enquiry which included round table meetings with lawyers, editors, publishers and bloggers.

After an executive summary which concludes that 'Ultimately we believe that legislation will be required to set an appropriate balance in law between the protection of reputation and the fundamental importance of free expression' it then goes on to list ten primary failings of the current system and offer solutions. These are described in full and then summarised.

They include
putting the onus on the claimant (who is often rich) to demonstrate damage;

capping the damages that can be claimed to £10 000 (these days it is often used a method of accruing wealth);

introducing a single publication rule (at the moment the claimant can sue for every copy - this is called the Brunswick rule because in 1849 the Duke of Brunswick successfully sued for libel after his manservant found a 17 year old journal in which the Duke found himself defamed);

only allowing cases where at least ten per cent of copies of the publication have been circulated in England and Wales (this prevents libel tourism - where the claimant and the publication is little known in England and Wales but the case is brought here because of the potential rich pickings and general reputation of the system);

the establishment of a low cost forum for trials (the usual setting for a libel case is a full trial which is expensive);

strengthening the 'information in public interest' defence;

expanding the definition of 'fair comment' (this was important in the Simon Singh case - still pending. If something is judged to be said as 'comment' rather than 'fact' then this is deemed to be merely the opinion of the respondent and therefore not necessarily libelous);

ensuring the costs for the respondent are capped (at the moment many people cannot afford to defend themselves because of the prospect of having to pay the fees of lawyers both defending them and prosecuting them);

making interactive online services and chat exempt from liability (at present a site-owner is liable for any libelous comment);

and also making large firms exempt from libel law unless they can prove malicious falsehood (this is because not everything is deserving of a reputation, and allowing large firms to sue has a 'damaging impact').

Case Studies.
There follows some interesting examples of where the English libel law has been used to stifle free speech, most of it within the last ten years.

The first started in 1984 over letters by a couple of Russian journalists in the Daily Telegraph. The English courts eventually decided in favour of the claimant (Vladimir Matusevitch) and ordered the respondent (Vladimir Telnikoff) to pay £240 000 damages. However Telnikoff then moved to Maryland in the USA, and the Maryland courts found they could not enforce the English libel judgment.

A case in 2003 was between another couple of Russians, this time both claimants against a magazine published in the USA. Even though only 6000 copies were accessed in print or on-line in this country the case was brought here because one of the claimants made frequent business trips to the UK and had a daughter at Cambridge.

The next case seems to me to be a land-mark case. It rumbled on between 2004 until 2008 and resulted in the Free Speech Protection Act 2009 which is pending before the US congress. This would provide protection from libel tourism throughout the USA and is the result of a case brought against a journalist Rachel Ehrenfeld who argued in her book 'Funding Exit - How Terrorism is Financed' that a wealthy Arab businessman was funding terrorism with a drug trafficking business. The book was not on sale in the UK but 23 copies were bought via the internet and the first chapter was available online.

Ehrenfeld refused to acknowledge the case, but Justice Eady ruled that Ehrenfeld's allegations were unsubstantiated, and the Arab businessman and his two sons awarded £10 000 damages each. Ehrenfeld, worried about the defamation ruling hanging over her sought a declaration that 'to enforce the UK judgment would be 'repugnant' to her First Amendment rights'. In February 2008 New York State Assembly passed the Libel Terrorism Protection Act (Rachel's Law) which makes foreign libel law was unenforceable unless the foreign law grants the defendant the same First Amendment protection as available in New York State.

In 2007 similar accusations were made against the same businessman by authors in a book published by Cambridge University Press. However in this case the publisher's Intellectual Property Director decided that 'it would not be a responsible use of our resources, nor in the interests of any of our scholarly authors, to attempt to defend a legal action (in this case)'. Neither author agreed to sign the publisher's apology posted on its website. The books were pulped and damages paid.

The owner of a website which allowed comments from readers that a football club decided were 'false and seriously defamatory' was forced to reveal the identity of the readers (who had commented under a pseudonym). The case was eventually not brought to court. However the football club did pursue another commenter for damages until eventually backing down and paying legal costs when the commenter secured the services of a lawyer.

Transmission of a programme by satellite also expose reporters to the English libel law, as Al Arabiya, a satellite television network based in Dubai, found in 2007. They were successfully sued by a Tunisian Sheikh. Although the report was in Arabic it was available to receivers in the English jurisdiction.

In 2006 there was a case of interest to novelists and concerned a character invented by Jake Arnott (who I interviewed here). He'd inadvertently chosen the same name for his character ( a musician) as a real-life musician. The case was settled out of court with apologies and 'significant damages and costs'. It makes me glad that I've always written about historical characters who died long ago.

The case studies finish with two scientific examples, both published in the Guardian. When Ben Goldacre wrote about his concerns about an advertisement by a vitamin pill manufacturer in South Africa denouncing AIDS drugs as ineffective, the manufacturer, Rath, sued for libel. Even though the case was dropped the Guardian still had to pay costs of £500 000. The other case concerns the suing of Simon Singh by the chiropractors. This case is still pending (and explained much better than I can on Jack of Kent's blog) but already has led to some potential good: the petition for libel reform and, presumably, this report. There have already been many reports in the newspapers and there are signs that the government is thinking of taking action.