Could US libel work in the UK?

US libel laws seem to work fine alongside robust free speech protection. Why can't we have their laws in the UK?


Free speech is valued more highly in the US than it is in the UK. There is no getting away from it. In the UK, people's right to privacy, their right to a fair trial and their ability to protect their reputation frequently outrank others' right to free speech. In the US, free speech trumps all.

The increasing use of the English libel laws to stifle free speech has triggered a robust campaign for their reform. If you don't live in England, don't worry: our judges can still get you. If what you write is downloaded in England from a website anywhere in the world, the High Court in London will hear a case against you (I focus on England because judges in Edinburgh are no so keen on libel tourism).

Recently, I was asked to explain to some US journalists how the English libel laws might apply to them. Mostly, they were unprepared for the shock. It got me thinking.

In 49 out of 50 States they use the English common law system and, at heart, US libel laws are the same as those in England. The differences are in interpretation. But thanks to the US Constitution's first amendment guarantee of free speech, those differences are stark.

US journalists were mostly unprepared for 
the shock of the English libel law

Here is what I thought. The US has a modern, free-thinking libel regime, but it works within English common law. Can't we just adopt their libel laws in the UK? They seem to work fine in the US.

[Note: I am not so keen on how the first amendment interacts with people's right to a fair trail, nor am I keen on US citizens' second amendment right to bear arms. In the UK, one is far more likely to be sued for libel; in the US, one is more likely to be shot.]

Here are some of the ways in which US and UK libel law differ:


Strict liability

Most law in the US and UK operates under the strict liability rule. Ignorance is no defence. If you run a red light, it does not help your case to argue that you did not see the light, nor that you did not know a red light meant stop.

In the US, strict liability is lifted for libel in the interests of free speech. This means you can argue, for example, that you did not know, or could not foresee that what you wrote might cause problems for someone. Good intentions matter.

In the UK, strict liability still operates. This means your intentions don't matter. You are judged on how other people interpret your writing. It means you can be sued over a typo, or an inferred meaning that did not occur to you when wrote the piece.


o  In the UK, you are judged on the worst-case interpretation of your writing that someone else can reasonably make.
o  In the US, you are judged on what you intended to say.

Burden of proof

In both jurisdictions, truth is an absolute defence. The difference is in who has the burden of proof. In the UK, the writer is assumed to have got things wrong. If they want to use the defence, they will have to prove the truth of what they wrote.

In the US, the plaintiff (the person suing you) has to prove that what you wrote was false. In fact, US courts make a distinction between those who seek publicity (celebrities and big companies, for instance) and those who don't. If you are sued by someone in the first group, not only do they have to prove that you got it wrong, they have to prove that you knew it was wrong when you wrote it, or that you behaved with a reckless disregard for the truth.

o  In the UK, you have to prove truth.
o  In the US, they have to prove falsity and may have to prove you knew it was false.

Harm

o  In the UK, there is no requirement for the person suing you to show they have suffered as a result of what you wrote.
o  In the US, there is.

Pressure to reform libel

Reforming libel is urgent in the interests of free speech according to campaign groups English Pen and Index on Censorship. They have produced a report which recommends changes to the UK libel laws to make it easier to defend a libel action, and to reduce the costs.

These are their recommendations (with my commentary):

• Unreverse the burden of proof. It would be up to a claimant to prove a story is false. Currently truth is the main defence to libel but the defendant is required to prove the story is true.
• Cap damages at £10,000. Currently there is a £200,000 cap.
• Change the multiple publication rule: currently each repetition is a fresh cause for action. This includes each time a piece is downloaded by a web visitor. The report recommends a single publication rule.
• Only allow English courts to consider a libel action where at least 10% of a publication's circulation is in England. Currently only a few copies need to be sold in England for the courts to claim jurisdiction.
• Establish a libel tribunal as a cheaper alternative to a full trial. 
• Strengthen the public interest defence. Currently stories where truth cannot be proved rely on the Reynolds defence. This is only available for stories of the most serious public concern.
• Entitling people to their opinion in a broader range of circumstances. The current fair comment defence comes with a raft of conditions.
• Cap base costs in libel cases. Currently the loser usually pays most of the costs of both sides and the sum is unlimited. The McLibel case is estimated to have cost £10m.
• Create special exemptions for some parts of the internet such as chat.
• Currently limited companies and PLCs have the same rights as individuals to protect their reputation. The report recommends removing libel protection for medium and large companies.
 

Libel in the news

• Libel stains Britain's good name says the Index on Censorship 
• The Times reports that US publishers have threatened to stop publishing in the UK because of the risk of libel action
• Simon Singh, writing in the Guardian, says that UK libel law is out of kilter with the rest of the democratic world, encouraging 'libel tourism' and the erosion of free speech in other countries
• The Index on Censorship and English PEN hope their report will stiffen the resolve of the current parliamentary select committee on press standards, privacy and libel, said Ken Macdonald QC, former director of public prosecutions, quoted in journalism.co.uk
• The BBC quotes the Ministry of Justice saying it will "carefully consider" the suggestions 

Libel: six options for reform

When Richard Dawkins talked libel to the LibDem conference on Sunday, he was preaching to the converted. The party has already proposed radical change to the law in light of Simon Singh's infamous legal battle with the British Chiropractic Association (BCA).

The LibDem solution is to change the burden of proof -- claimants would have to show a story was false to sue. Currently, the publisher must prove their story is true if they want to use the defence of justification (truth).

Prof Dawkins says British libel laws are stifling scientific debate. When Dr Singh criticised the BCA he might have expected -- welcomed, even -- a robust defence. What he didn't expect was the difficulty and expense of a libel suit, launched before the BCA issued any repost to his criticisms. Libel certainly doesn't encourage debate, and that is unhealthy for science and for society.

So how could the libel law be changed to allow scientists and others more freedom to discuss ideas in public? Here are six options:

1) Un-reverse the burden of proof

Pros: the LibDem solution brings libel into line with other law where one is innocent until proven guilty
Cons: may be politically difficult to put into practice. The same law protects celebs and innocent little old ladies from tabloid smears.

2) Give scientists special privilege

Pros: privilege already exists for MPs and lawyers to allow them to do their jobs. Why not scientists?
Cons: special conditions could make defending yourself against libel even more complicated.

3) Make fair comment unconditional

Pros: fair comment allows critics to give their honest opinions about films, restaurants, politics. The courts already distinguish between opinion pieces and news stories, but there is a condition that you do not pass off as comment allegations of criminal or immoral behaviour. Removing that condition would give everyone free speech as long as the context is opinion.
Cons: could result in blogs becoming unbridled slanging matches.

4) Different rules for different claimants

Pros: already works in the US where companies and people in the public eye must show that a libel was intentional or negligent. Ordinary people get better protection.
Cons: potentially makes libel more complex.

5) Mandatory repost

Pros: by making claimants show they took all reasonable measures to put their side of the case, you would make flaky claims more difficult. Also: the law is supposed to be equitable. Publishers no longer have a special position. In the internet age, anyone can put their case to the public.
Cons: the courts would have to establish what reasonable means in this context.

6) All the above?

Pros: we get free speech.
Cons: bit radical, maybe?

Simon Singh and the jury

Simon Singh, the science writer best known for Fermat's Last Theorum, must decide whether to contest a libel claim by the British Chiropractic Association following a High Court ruling that the meaning of what he wrote is much worse than he intended.

If he wants to continue, Dr Singh may have to prove the BCA was dishonest. A tall order. Everything seems to be against his continuing, but he may have one thing on his side: the jury.

In an opinion piece for the Guardian, Dr Singh described as bogus BCA claims that chiropractors could help (amongst other things) childhood asthma. In a preliminary ruling, the court said that this meant the BCA was being consciously dishonest.

There are three main defences to libel, as student journalists will recall. The obvious protection for an opinion piece comes from the defence of fair comment. In other words, Dr Singh is entitled to his opinion. But fair comment is a conditional defence and one of the conditions is:

you cannot pass off as comment allegations of criminal or immoral behaviour.

The High Court's interpretation of the article would seem make it an allegation of immoral behaviour and so the defence may be less robust than Dr Singh would wish.

It is difficult to see how the second possible defence, privilege, would help. The most useful flavour, a common-law form of privilege known as the Reynolds Defence, requires that the writer gives his subject the right to reply to allegations. It is not usual to include such responses in an opinion piece.

That leaves the defence of truth, known in England and Wales as justification. There are no conditions to the justification defence -- if it is true, you can publish. However, there are a couple of awkward wrinkles:

• The burden of proof in libel is reversed -- the writer has to prove it was true; the claimant does not have to prove it was wrong
• The meaning you are judged on is not what you intended but what would be understood by a reasonable person in the worst case (hence Dr Singh's problem with the High Court ruling)

There are many from the scientific community (and many more who care about free speech) who would like to see Dr Singh continue to fight the libel action. But there is a slim chance of success and, if he loses, he faces enormous costs.

"One glimmer of light is the
standard of proof required"

One glimmer of light is the standard of proof required. It is not the proof beyond reasonable doubt that we see in criminal cases. In libel, proof on the balance of probabilities is used. In practice, that means the winner is the one who convinces the jury.

Notoriously, in libel, the celebrity usually wins (of course, the celebrity is also usually the one suing and so this may not be a good guide in the Singh case). Juries tend to have a natural disposition to side with the well-known. As a famous author, this may give Simon Singh an edge. On top of that, there is the evidence that the Advertising Standards Authority upheld a complaint against a chiropractor who claimed he could treat children with colic.

Neither of these factors would amount to a proof that would see a defendent convicted in a criminal court. But could they be enough in a civil suit?

Juries are picked at random, so if Dr Singh continues there will be huge element of risk, with hundreds of thousands of pounds in legal expenses at stake. Hypothetically, one jury may be sympathetic to Dr Singh but feel the word bogus was going too far. But another may feel he had a point. No-one can say for sure until there is a real jury and they have heard the evidence. By then the losing side may be facing a bill for millions.

See also:

• Nick Cohen's article in today's Observer
• The BCA's statement on the case [PDF]
• Jack of Kent's commentary on the case
• The Facebook page For Simon Singh and Free Speech

Notes:

• The author is a journalist not a lawyer (and a lover not a fighter, but has no firm view on the dogs vs cats thing).
• The piece is written for general interest and does not represent legal advice to Simon Singh or anyone else.

Journalists thwarted by FoI delays

Journalists are being discouraged from using the Freedom of Information Act by the delay tactics of officials, according to a report.

A shock to the system [pdf link], written by the BBC's Jeremy Hayes for the Reuters Institute for the Study of Journalism describes some notable successes for journalists using FoI. But it says the time government departments take to respond is limiting journalists' ability to be effective.

Hayes cites an investigation by Chris Hastings of the Sunday Telegraph into Formula One Boss, Bernie Ecclestone's donation to the Labour party and Tony Blair's involvement in F1's exemption from a tobacco advertising ban. It took two and a half years before Hastings was given the relevant documents and in the meantime Tony Blair had left office.

According to Hayes' report:

The evidence of the more contentious and disputed cases points to a standard gestation period of over two years before disclosure . . .

Examination of the decision notices by the Information Commissioner [shows] the propensity of officials to use exemptions in the Freedom of Information Act to prevent disclosure . . .

In case after case, the exemption clauses cited are many in number, applied blanket-style, and have the effect of creating layers of defence, each of which has to be considered in its turn, thus adding to the complexity of the process and the time needed to complete it.

Telegraph shuts down MP's blog

Legal action by the Telegraph has resulted in the blog of tory MP Nadine Dorries being shut down, the Guardian reports.

The paper's lawyers moved against the blog's host rather than Ms Dorries herself. The 1996 Defamation Act was supposed to prevent this type of action. The section 1 defence protects people (such as internet hosts) who publish libellous statements but who are not directly responsible for creating the libel.

The problem is that the defence is conditional on the internet host taking all reasonable measures to stop a libel being propagated. If the libel is drawn to the internet host's attention, then they have to do something about it. The usual response is to delete the offending material without contacting the author.

In this case, the internet service provider has taken the entire blog off line.

Blogger settles libel claim

A tax accountant blogger who wrongly accused Lord Ashcroft of helping people to dodge tax has paid a substantial sum to a charity as part of a libel settlement, Press Gazette reports.

Richard Murphy, director of Tax Research llp, claimed that tory deputy chairman's company BB Holdings helped customers unlawfully evade tax. Lord Ashcroft's lawyer said that Mr Murphy appeared to base his allegations on his interpretation of what he read on another website. That website subsequenty said it was not making such allegations and was not even referring to Lord Ashcroft's company.

The lawyer also pointed out that Mr Murphy had not approached his client for comment before publishing.

Simon Singh's bogus meaning

Science writer Simon Singh has lost a preliminary libel battle in the High Court with the British Chiropractic Association, the Guardian reports.

The ruling centred on the meaning of the word bogus. In a comment piece for the Guardian, Dr Singh criticised the BCA for happily promoting bogus treatments. Mr Justice Eady said this implied the association was being consciously dishonest. Dr Singh says he never intended this meaning.

The case highlights the dangers of certain words in libel. Dr Singh may have felt able to prove a lack of scientific evidence supporting the efficacy of the treatments the BCA advocates. But the High Court's ruling means that for a defence of justification (truth) to work, he will now need to prove that the BCA was consciously dishonest -- a much tougher thing to show.

The writer's intention does not matter in a libel case. The test is how the text would be understood by a reasonable person. Importantly, where there is more than one possible meaning, the court is allowed to consider the worst-case meaning.

The defence of fair comment may also be open Dr Singh -- he is entitled to his opinion. But this defence has conditions including that he cannot pass off as comment allegations of criminal or immoral behaviour. Whereas questions about a lack of scientific evidence may be considered fair comment, accusing the BCA of being consciously dishonest is likely to taken by a court as an allegation of immoral behaviour.

Conjecture creates libel

West Ham's manager and coach accepted undisclosed libel damages and costs from the BBC over speculation on Radio 5 Live that they were considering a move to Chelsea, AFP reports.

Gianfranco Zola and Steve Clarke signed contracts with West Ham running until 2013. Their lawyer told the High Court in London that an unfounded report on Radio 5 Live that they had been interviewed by Chelsea's owner may have damage[d] their relationship with their employers and with the players and fans of West Ham

The case underscores the difficulty under UK libel law for journalists reporting stories based on rumour or speculation. If the story is damaging to someone's reputation then the reporter may have to prove the substance of the speculation to have a defence. In this case, the BBC accepted that it could not prove the interview with Chelsea took place.

Note that since the intention of the reporter is not a factor in UK libel cases, it is no defence to have been unaware of Zola and Clarke's contracts with West Ham.

The BBC's apology.

Amy Winehouse's paparazzi ban

Amy Winehouse has won a high court injunction to prevent paparazzi photographers from pursuing her, the Guardian reports. Similar protection was given to Lily Allen in March.

Winehouse and Allen used the Protection from Harassment Act 1997. The act does not clearly define harassment but makes it a criminal offence to cause a person alarm or distress.

If someone feels they are being harassed, they can go to court to seek an injunction to prevent that harassment. Breaching such an injunction is a criminal offence with a maximum penalty of five years in jail or an unlimited fine.

Allen's injunction specifically restricts two photo agencies, Big Pictures and Matrix Photos. Winehouse's injunction also mentions Big Pictures but includes a ban on "persons unknown" pursuing her. This would appear to limit any reporter or photographer from following her.

Downing Street sued for libel

Nadine Dorries, a Conservative MP smeared by Damian McBride in an email, is suing Downing Street for libel.

The News of the World reports that she is suing Downing Street as well as McBride because the emails were sent from a No 10 account on a No 10 computer.

California latest to block UK libel

California is the latest US State to initiate laws to block libel judgments from countries (such as the UK) that do not offer US levels of protection for free speech, Press Gazette reports.

Web libel time limit

Jack Straw, the Justice Secretary said he will look at the statute of limitations for web libel under English law.

Answering questions at the Press Gazette media law conference, Mr Straw said he will have a good look at the precedent which effectively means there is no time limit on online libel.

Claimants who wish to sue for libel under English law normally have one year from the date of publication. However, a case from the 19th century established the precedent that if back issues containing a libel continue to be made available, publishers can be sued afresh.


This ruling has been extended to cover articles on the web. Even if it was first published several years ago, a web story is considered to be published anew every time someone downloads it. This means that stories contained in a web archive are actionable as long as they are available to view. The one year time limit only begins when an article is removed from the web.

News Group lawyer, Alistair Brett (who asked Mr Straw the question) pointed out that The Times has an archive going back to 1785, exposing it to potentially huge legal risk.

Press regulation blasted

The Press Compliants Commission does not maintain standards nor does it protect the freedom of the press according to a report on self-regulation by the Media Standards Trust.

The report, whose authors include senior journalists and lawyers, concludes that self-regulation can be effective but the PCC is just not doing a very good job.

The report suggests improving the PCC, including:

• It should be independent of the press (currently newspaper editors dominate)
• It should have the power to fine newspapers for transgressions
• It should monitor whether the press complies with its standards (currently it only deals with complaints)
• It should publish details of how it is funded

The report says the public trust in journalists is at an all-time low. According to a YouGov survey conducted in December for the report:

• 75% of the public agrees with the statement newspapers frequently publish stories they know are inaccurate
• 10% agrees with the statement we can trust newspaper editors to ensure that their journalists act in the public interest

Children in Need libel

The BBC has paid undisclosed damages to a Leeds community worker over allegations on Newsnight that money from Children in Need was passed to the 7 July bombers, Press Gazette reports.

Newsnight did not identify Hanif Malek who successfully sued. But his lawyer argued that some viewers would be able to identify him because of his connections with Leeds Community School which did feature in Newsnight's report.

This was a form of libel by innuendo. Only viewers with special knowledge would perceive the report as libellous but that is enough for a successful action.

Sharon Osbourne wins libel action

The Sun has settled a libel claim brought by Sharon Osbourne over claims she was working her husband to destruction to pay for her excessive lifestyle, the BBC reports.

The Sun accepted the allegations were untrue and paid undisclosed damages and costs.

The right to poke fun

Elton John's libel action against the Guardian was thrown out yesterday because the judge said the disputed article was satirical rather than factual.

John claimed that the meaning of the column A peak in the diary of... Elton John (written by Marina Hyde and published on 5 July) was that he was insincere about the Elton John Aids Foundation and that he used it for self-promotion rather than to raise money.




The meaning that matters in a libel case is what would be understood by a reasonable person in the worst case.

The High Court Judge, Mr Justice Tugendhat, ruled that words Marina Hyde used were obviously a form of teasing and that no reader would take the statements to be factual. The article (view here) is written in the voice of Elton John and is not presented as a news story.

In a statement, the Guardian said: the judgment is an important recognition of the right to poke the occasional bit of fun.

Paparazzi doorstep ban

Paparazzi agency Big Pictures and its founder Darryn Lyons have agreed not to follow Sienna Miller nor to doorstep her at home as part of a £53,000 settlement for harassment and privacy. In a related case, The Sun and The News of the World paid her £35,000 in damages.

They will be allowed to photograph her in nightclubs, at red carpet dos and at other public events, the Guardian reports.

The Protection from Harassment Act 1997 (UK) allows a someone to sue over actions which cause them alarm or distress. To win the case, they have to show that the conduct of the defendent occurred in circumstances where a reasonable person would have realised harassment would be the effect.

The day-to-day activities of press photographers would not normally be considered harassment but they must take care that their behaviour would not be judged by a reasonable person to cause alarm or distress.

Parliament reviews press standards

A UK parliamentary committee is to investigate press standards and the operation of the libel laws The Guardian reports.

Sienna Miller wins privacy claim

Sienna Miller has been paid £35,000 (plus costs) by The Sun and The News of the World in an out of court privacy settlement.

The papers published stories and photographs earlier this year about Ms Miller's alleged relationship with Balthazar Getty and her breakup with Rhys Ifans.

Lawyers Carter Ruck sued under a range of laws including Breach of Confidence and Harassment.



Breach of Confidence is recently being reinterpreted as a privacy law by the English courts in light of the Human Rights Act. A claimant in a Breach of Confidence action has to demonstrate that the newspaper could reasonably foresee that there was an obligation of confidence. In the past, this has required some kind of contract or relationship. For instance, a company employee has an obligation of confidence to his employer (because of their employment contract). If that employee gives a reporter an internal memo containing confidential information, the journalist would be expected to foresee that there is an obligation of confidence and so that obligation would effectively pass on to them.

When Naomi Campbell was pictured coming out of a drug clinic by The Mirror in February 2001, there was no contract. Yet the courts ruled in her favour, effectively saying that the newspaper could reasonably foresee that she would want to keep that information confidential.

The principle was extended further when F1 Boss Max Mosely sued The News of the World earlier this year for publishing pictures of him with prostitutes. Again it was a Breach of Confidence action, where his lawyers argued that there was an obligation of confidence because the newspaper could reasonably foresee that he would wish to keep the information private.

There is a public interest defence to breach of confidence which the newspapers tried in both the Naomi Campbell and Max Mosely cases. In each case, the defence failed.

Settlement in the latest Sienna Miller case would imply that they newspapers felt they did not have a sufficiently strong public interest argument for publishing.

US blocks libel tourism

US writers will be given protection from the UK libel laws if two bills passed by Congress today are ratified by the Senate.

If enacted, the new laws would stop US courts from enforcing UK libel decisions and would allow writers to countersue UK claimants in the US.

More information from the NY Times and The Reporters Committee for Freedom of the Press.