Good News for Freedom, For a Change

I’ve been a republican as long as I’ve been a non-believer – that’s pretty much all my life. Similar thoughts about iniquity went through my mind at a similar time. I’m not sure whether I’m a British republican, or an English republican, or whether I just want an end to a system where the only qualification required for Head of State is who’s womb you passed through.

That said, the British political system isn’t the worst in the world though by no means the best. The Head of State does have useful functions, maintaining political neutrality being one of them. All parliamentary legislation is done in the name of the Head of State, and government is, nominally at least, accountable to that Head of State. Personally I don’t see why the Speaker of the House of Commons can’t fulfil that role as well as his own.

Every year, the government has to list its planned legislative programme prior to the start of each Parliamentary session. The agenda is read out by the sovereign in a document known colloquially as the Queen’s Speech – obviously once the Prince of Wales or his son assumes the role that will change.

Considering the current problems in double-dip Britain, and the strains within the Conservative-Liberal coalition this year’s speech didn’t set the world alight – most of it worthy, some of it welcome. However, there was one proposal that didn’t make it to the mainstream news, and it won’t affect many of us directly, but is a massive boost to freedom of speech, provided it doesn’t end up being diluted. The English libel laws are to be reformed, and not before time. Given that all political parties have ostensibly supported reform for many years it’s surprising (or perhaps not) that it took so long.

The legislation, (I’m not sure whether Liberals or Conservatives have taken the lead on this issue. I suspect the former), is very welcome. Although I can’t see any opposition coming from anywhere, hopefully it will pass without incident. Far better to import the First Amendment of the US Constitution wholesale, but this being Britain, that’s not going to happen. We should view it as a step in the right direction, even though already some issues have been raised.

In his book You Can’t Read This Book, Nick Cohen devotes a chapter to the iniquitous English libel laws. Cohen is right to publicise concerns about the current system. As he says in the book:

Contrary to natural justice and the Common Law, the burden of proof is on the defendant. Once a claimant has shown that the words in question are likely to provoke hatred, ridicule or contempt, the alleged libeller has to prove what he or she has written is true, or a fair comment based on true information.

This seems reasonable enough, but Cohen goes on:

English libel law, and the laws of Scotland, Ireland and all the former British colonies that take it as its guide, works on the assumption that a gentleman’s word is his bond, and that anyone who impugns his honour must prove his case.

A second archaic quirk makes wealthy litigants appreciate English law all the more. The judiciary treat a gentleman’s reputation as if it were his personal property, the defilement of which is a wrong in itself. Libel and trespass on land are the only torts the law says are actionable per se. A claimant does not have to prove that a writer has caused him to suffer financial loss or personal injury, any more than a landlord has to prove that a trespasser has damaged his land. The claimant can still sue even if no-one has formed a bad opinion of him or read and remembered the offending words.

Making it worse, there is effectively no statute of limitations. In the 19th Century the Duke of Brunswick sued a newspaper for libel nineteen years after the event, on the basis that his servant, acting on his instruction, was able to purchase a back copy. This precedent is maintained in the law today. The laws also discriminate in favour of the wealthy, as there is no legal aid available for defamation cases. Obviously, given the burden of proof in such cases, this tends to deter criticism, even if wholly justified, on cost grounds. The penalties in libel cases, as well as the legal costs, have tended to be ferocious. Libel cases in England, apparently, cost 140 times the average of other European countries.

And worse still, provided that the alleged libel could be read in England, there is nothing to stop foreign individuals suing foreign companies in English libel courts – so-called “libel tourism” – even if in their own countries there would be no case to answer, although President Obama has rightfully enabled legislation protecting Americans and the provisions of the Constitution.

So we have had the nonsense of Cameron Diaz suing the National Enquirer in England for alleging her infidelity – the case was settled to her advantage out of court. Likewise, Arnold Schwarzenegger sued an American author, in England using English law, for comments contained in an unauthorised biography.

Cohen details several more absurdities, including:

• A Danish newspaper reported about the links between an Icelandic bank  -at the time that some of those banks’ activities were effectively bankrupting the country – and tax havens. Unable to persuade the Danish press council of any wrongdoing, the bank sued for libel in London. The newspaper retracted, having run up costs of £1 million even before the case went to court.
• The neo-nazi and holocaust-denying “historian” David Irving sued an American author and her British publisher for alleged defamatory comments. Thankfully, Irving lost. However, Cohen notes that the publisher ran up a legal bill of “several million pounds – money that it never recovered”.
• A man accused of participation in the Rwandan genocide, in a report from the New York-based Human Rights Watch, threatened to sue the charity for defamation in England, as there had been a small number of English readers accessing the report online. Human Rights Watch was forced to reconfirm facts and relocate sources, using time that could have been better spent. At the time the man was being investigated by the Rwandan government and had gone into hiding.
• British scientist and popular science writer Simon Singh was sued by the British Chiropractic Association, of all things, for claiming that their treatments were “bogus” – an eminently defensible claim. However, the BCA was allowed to sue on the basis of defamation. The complaint was withdrawn following an internet campaign in which Singh’s original article was copied and published several thousands of times – if Singh was to be prosecuted then so should everybody else, and the BCA’s lawyers concede that this was impossible. but it shouldn’t have come to that.

Rich people with something to hide have often made use of English libel law. The best known was publisher, football club owner and crook (why do the words “football club owner” and “crook” seem to appear in the same sentence so often?) Robert Maxwell. Maxwell was never slow to use the laws, or threat of them, to silence any criticism, particularly surrounding his business affairs. His last writ was against the satirical and investigating journal Private Eye, which alleged that he had been “gambling” with his own company’s pension fund. Maxwell’s lawyers were unable to take the case further because he then died mysteriously, and shortly afterwards it was shown that the allegations were true. Ironically, his business then passed to his sons, who were sued for fraud, and because the ownership of their assets was in dispute, were able to obtain legal aid for their defence.

No one wants a situation where untrue and genuinely damaging allegations are not compensated, at least by retraction. But neither do we want a situation in which true allegations are suppressed on cost grounds, where the wealthy can use threats to conceal a wrongdoing, or where the fraudulent can appeal to “reputation”.

The Bill contains several proposals.

• The presumption in favour of costly jury trials is to be abandoned.
• Claimants will have to demonstrate “serious harm” rather than “substantial harm”. There doesn’t seem ostensibly to be too much difference but effectively this means that claimants will have to demonstrate actual damage to their finances or livelihood, rather than potential damage, or just damage to their reputations.
• Journalists can use “honest opinion” or public-interest defences, such as safety concerns.
• “Libel tourism” will be made more difficult for people living outside the EU. I’m not sure what “more difficult” means, and it would have been better if this was banned altogether.
• Owners of websites, blogs and internet forums are not to be held responsible for user comments.
• Scientific and academic journals are to be specifically protected.

Not exactly the first amendment, but a step in the right direction. Knowing the English legal system, there may yet be surprises, and the bill has not even been introduced, let alone passed, at the moment. Still, there seems to be near-unanimous political support for the measures. Let us hope it gets through unscathed and that it sets the pattern we need.