Tuesday, June 09, 2009

Mind what you say

As those of you who read Private Eye on a regular basis might have noticed, this country's fucking stupid libel laws have made the UK a haven for so-called "libel tourists"—people who bring libel cases through the British courts, even though they have little to do with British citizens.

Despite the takedowns of various high(ish)-profile blogs, there has been a surprising lack of co-ordinated action in the blogosphere around this issue. After all, despite the bitching and moaning of the MSM, the politicians and their ghastly hangers-on, we bloggers are subject to libel laws, just like everyone else. I was, at one point, involved in campaign discussions with Manic and Unity but my involvement petered out due to time restrictions.

So, these were the two bloggers that I emailed back at the beginning of May, when I spotted this item on the govtrack.us website.
To create a Federal cause of action to determine whether defamation exists under United States law in cases in which defamation actions have been brought in foreign courts against United States persons on the basis of publications or speech in the United States.

A-ha! I thought. This is the US fighting back against these libel tourists—or, at least, ensuring that their own citizens are protected (something that the US is pretty good at doing).

Now, via @bengoldacre, your humble Devil has noticed that the US government's move has made it into The Times.
American politicians are pushing through free speech laws to protect US citizens from libel rulings in British courts that have been accused of stifling criticism of oligarchs and dictators.

The development follows claims that foreigners flock to the UK to begin hugely expensive defamation cases even though they have little to do with this country.

Claimants who have indulged in so-called “libel tourism” include a Ukrainian businessman who sued a Ukrainian language website based in his homeland for £50,000, simply because its contents could be viewed in Britain.

An Icelandic bank successfully sued a Danish newspaper in the British courts for publishing unflattering stories about the advice it gave to clients, despite collapsing six months later.

Now lawmakers in several American states, including New York and Illinois, have moved to block the enforcement of British libel judgments in the United States.

Congress is also considering a bill that will allow defendants of foreign libel suits to counter-sue for up to three times the damages sought by a claimant if their right to free speech, enshrined in the First Amendment, has been violated.

Excellent. Now, just possibly, we could get a campaign together and get our weakened MPs to change this utterly unjust law.
“Our libel laws have made Britain a place where any of the world’s bullies and wealthy celebrities can wander into court 13 \ and launder their reputations,” said Mark Stephens, a partner at the law firm Finers Stephens Innocent, which advises many non-governmental organisations (NGOs).

“In the US you can still be sued but claimants pay for their own lawyers, fewer spurious claims go to court and freedom of speech is enshrined in law

by the First Amendment. Some NGOs are seriously considering moving their publication people out to the States to protect themselves.”

London has long been regarded as a claimant-friendly place for libel actions because defendants are deemed “guilty” until they have proved their innocence, the opposite of the usual burden of proof in criminal cases. Damages are also typically higher in the UK and the costs so expensive that defendants often feel compelled to settle out of court, even though they may be in the right.

Because there is no legal aid for such cases, the government has allowed libel and privacy claimants to sue under “no win, no fee” arrangements. This enables lawyers to claim a 100% “uplift” on their normal rates. One of London’s leading libel lawyers charges up to a total of £1,200 an hour.


And up to their necks in this disgusting defence of (often) deeply unpleasant people are our old friends Schillings, and Lord Justice Eady (a fucking turd even by the standards of judges)—the latter ruled in the case, detailed below, which the Eye keeps returning to.
Mr Justice Eady, a High Court judge, has delivered a series of rulings that have bolstered privacy laws and encouraged libel tourism. He awarded Max Mosley, the Formula One president, privacy damages of £60,000 over the News of the World’s exposé of his sex life.

Most recently, Eady has been accused of “stifling” scientific debate after he ruled in favour of a trade body for chiropractors against a science writer who had accused the body of promoting “bogus treatments”. Eady said that Simon Singh, the writer, had effectively accused the body of dishonesty.

In a landmark decision five years ago Eady gave judgment for Khalid bin Mahfouz, a Saudi banker, who had sued Rachel Ehrenfeld, an American academic. She suggested in a book that the banker had links to the financing of terrorist groups.Ehrenfeld had not published or promoted the book in this country but 23 copies sold over the internet were shipped to Britain. She decided not to defend the case, but Eady ordered her to pay £130,000 in costs and damages.

He also ruled that any copies of her book must be pulped. This judgment almost single- handedly launched the American freedom of speech backlash against UK libel laws.

Well, good for the Americans, I say. And it's typical that not only should they move to stop our courts interfering with their citizens, but they are adding a counter-sue option. Excellent.

And, given that the Americans have now drawn attention to the fact that our libel laws are deeply unjust and archaic, what will our MPs do...?

I'm guessing that the answer to that is "fuck all".

P.S. The article also mentions the case of Simon Singh, who is being sued for libel by a bunch of fucking woo peddlers, which Unity has an update on.


Roger Thornhill said...

The US must not be hypocritical. The UK should rule about UK courts not enforcing/recognising daft "extraterritorality" "laws" from the US.

Ian B said...

Hmm. Sort of cuts both ways, really. There are goods and bads. I mean, I personally feel kind of glad that Max Mosley had some kind of comeback against the prurient fucktards at the News Of The World. I find it kind of hard to sympathise much with the crocodile tears of "NGOs", either, who ruthlessly use the press to smear those who disagree with them.

Angry Exile said...

And yet American free speech laws haven't helped these two. They may well be racist fucknuts but free speech is an absolute, right? Not in Californian courts apparently. Perhaps if they were Yanks they'd have won eventually, but since they could be banged up till they could be stuck on a plane back to Blighty free speech just meant the freedom to say agreeable things. Shades of Geert Wilders.

Martin Meenagh said...

These American reforms began because of fears that terrorist funders based in the Middle East and named in American books would (as one alleged person may have done) threaten a suit in England that Americans could not turn up to; they would then have gained judgment in default. Or that was the fear anyway. The relevant book was withdrawn from publication here, but can be downloaded, and Joe Lieberman and others began pushing an initial version of this bill.

So it's not just 'free speech'. England and Wales do need a free speech law like that in the US though--malice should be proven before a libel suit could go on.

Rob said...

A government of lawyers reluctant to reform a law which brings lawyers lots and lots of lucrative business. Hmm...

Katabasis said...

It's this sorry state of affairs that enabled Peter and Paul Griffin to successfully sue the Guardian and the BBC for suggesting that they were affiliated with the A.Q.Khan nuclear proliferation network.

This is despite the fact that i) A customs investigation confirmed that they were indeed hip deep in the network and Peter has acted as the primary UK linchpin in the network since the 70s (!!) and ii) The US recently put the Griffin on a list of people they consider to be international terrorists, wanted for their links to the network.

Peter is currently sunning himself in a nice French villa and Paul is tossing around in the UK. Neither have been bothered by the authorities despite being added to the list.

FlipC said...

As you say they're archaic, they haven't been adapted to the current state of globalism. Perhaps rather than a complete redraft a simple burden be placed on the complainant that they demonstrate on reasonable grounds of probability that the alleged defamation originated in this country.

So the Danish papers discussing the Icelandic banks have some of their newspapers sold here, so what? Origin obviously occurred outside this country. The only way they could sue is if our own papers decided to crib the story and write it as their own, as if they'd do that.

At the same time this maintains protection from a British Blogger libelling someone and claiming that the server they are using is off-shore. Origin can be demonstrated to be within this country.

Okay turn that over and pick it apart for flaws.

peter carter-fuck said...

Mr Justice Eady is our leading libel judge. He sits on most of the important cases. It's hardly in his interests to restrict the ability of rich people to use the law is it? He'd end up dealing with shoplifters in the Uxbridge Crown Court, and that would never do.

Ghillie said...

I don't know whether you caught this link - http://www.christian.org.uk/news/ - on Cranmer, but regardless of the content and looking at the repressive principle it illustrates, it is a classic example of the troubling trend you highlight in your post.

billy said...

Americans use the English High Court when it suits them.Have we forgotten this?


We do need reform but we can do without the holier than thou stuff.

Not Quite Hayek said...

This should be used as leverage... Stop extraditing people to the US for crimes committed outside of the US, in return for dropping our batshit libel laws.

Anonymous said...

And yet American free speech laws haven't helped these two. They may well be racist fucknuts but free speech is an absolute, right?

Wrong, Free Speech is not absolute, if it were there wouldn't be slander laws would there? ALso the old "you can't yell FIRE in a crowded theater" (unless there really is one) is true, it's a crime.
You should also read the story you linked. their own former lawyer said they should have just walked out of LAX and gone about their business, instead of applying for asylum.

Angry Exile said...

I did read the story I linked to and I did see the lawyer's comment. Don't see the relevance though. So his clients were stupid as well as racist, or rather stupid for other reasons than simply being racists. And? If they'd taken his advice they'd be free but would presumably be deported if caught rather than already incarcerated and easily frogmarched onto the plane. A world of practical difference but I don't see how it would have changed their legal situation.

Of course I can yell 'fire' in a crowded theatre. I'm not a lawyer but I'd bet you there's nothing in Victorian or Australian law that specifically says I can't. Of course it would be foolish since other people might act as if there is one rather than look to see if I'm right or wrong and so there might, might be repercussions. However, I'm pretty damn sure that if someone yelled 'fire' in a crowded theatre and the response was a universal 'bullshit, there's no fire' or 'shut up ya dickhead' there wouldn't be much they could be charged with. I reckon the worst that would happen is the manager telling them to piss off and not come back. Likewise slander - as I understand it anyone on the receiving end would first have to prove that what was said was both untrue and damaging and at the same time also show that it was not fair comment and that it was actually said in the first place. Libel is easier because there'd normally be a record, but I can still say or write that Kevin Rudd is a twat, and even though It's factually incorrect in a literal sense and does him no favours it's not slander or libel.

When I say freedom of speech is an absolute I mean exactly that, but only that. Don't think that I mean absolute freedom to mean no repercussions. What I mean is that if the law imposes any conditions on what can or can't be said then by definition speech is conditional rather than free. The country I was referring to has a law that specifically says "Congress shall make no law ... abridging the freedom of speech" - that sounds fairly absolute to me, yet it's not proven so in practice. But like I said it might have turned out otherwise if they were Americans rather than easily deportable Brits.

John A said...

Angry Exile, they were not sent back because of their speech, they were denied asylum because they could not show evidence of persecution. Fleeing prosecution was certainly a factor... And yes, as long as they were not advocating violence their writings may well have been legal in the USA - as would be the display of the NAZI version[s] of the swastika, which is mostly illegal in Germany. Different places, different histories, different laws...

OTOH, we do have jurisdiction-shopping here as well, some of it being [in]famous...

The Englishman said...

I had an article - Letter from Bangkok - published in The Eye recently.

Anonymous said...

Eady got the Mosely judgement right.

That was about privacy, not libel. Without it, the press could quite happily spy on any of us and print a story about who got your rocks off and how, irrespective of any public interest. They've already destroyed ordinary people's lives like this, if you care to look.

And didn't Dacre say something to the effect that the tabloids needed to be allowed to do so to make sure that they could keep sales up? Bastions of morality, my arse.

The press bashing Eady got at the time was disgraceful. One paper point blank wouldn't print any critical comment on open comment sections. I know, I tried. And the group it was part of, after the judgement came out, then published a concerted set of very selective articles that made them sound like Mother Theresas, irrespective of their reporters being shown up in court for what they were. And all comment was closed down, so no-one could point out the hypocrisy

Sure, let's change the libel laws, but don't confound the issues