British Libel Law: Its Ripple Effect on Journalists Worldwide

Germany’s Duke of Brunswick was an overweight, autocratic paranoiac who was kicked out of his fiefdom by a peasant uprising.

RELATED ARTICLE
“Libel Laws Pose Obstacles to Ukraine’s Investigative Journalists”
– Vlad LavrovA statement like that might be the reason why the United Kingdom has come to be considered the libel capital of the world. While living in exile in Paris in 1848, the Duke became one of the U.K.’s first libel tourists when he sent his manservant across the channel to purchase a copy of the September 19, 1830 Weekly Dispatch, which he believed contained defamatory statements against him. The exact details of what was written have been lost to history, but the court ruled that the words were libelous enough to award a judgment. More important was the finding that the mere purchase of a copy of the newspaper constituted a new publication and a new act of libel; this essentially nullified the six-year statute of limitations.

The Duke of Brunswick ruling—formally known as the “multiple publication” rule—still stands. Brought into the Internet era, it means that if an article is viewed even once in the U.K., it falls under its jurisdiction for a libel suit. Here are examples of libel cases filed in London based on this rule:

• In 2005, the Icelandic investment bank Kaupthing successfully sued the Danish newspaper Ekstra Bladet for a story critical of its advice on establishing a tax shelter.
• Terrorism scholar Rachel Ehrenfeld was successfully sued by Saudi banker Khalid bin Mahfouz, who she had identified as a financier of Osama bin Laden in her 2003 book “Funding Evil: How Terrorism Is Financed and How to Stop It.” The first chapter was posted online and 23 copies of the book had been bought online in the U.K.

To avoid the multiple publication rule, the Kyiv Post, a frequent target of such lawsuits, blocked access to all Web traffic from the U.K. in December 2010 in protest of its defamation laws.

…The threat of having [a lawsuit] filed against a publication can have a chilling effect on what gets published.

This rule—and a history of court decisions—has solidified the U.K.’s reputation as one of the easiest places to win a libel lawsuit—unless you happen to be a journalist. In the U.K., the stance on defamatory statements could be considered “false until proven true,” leaving it to publishers and journalists to prove their claims in court whenever a lawsuit is brought against them. Because these lawsuits are costly and time consuming to defend, the threat of having one filed against a publication can have a chilling effect on what gets published.

Compounding this, plaintiffs face almost no risk in bringing libel lawsuits. Lawyers frequently file lawsuits under a conditional fee agreement—”no win, no fee.” The plaintiff does not have to pay his attorney if the case fails. However, lawyers are allowed to collect “success fees” on top of their usual fees when they win a case.

This system doesn’t work so well for those who own newspapers. When sued for libel, they can end up paying their lawyers’ fees, the plaintiff’s lawyers’ fees, damages awarded to the plaintiff, and a success fee. In fact, these success fees are so onerous that the European Court of Human Rights ruled in January that they violate freedom of expression, adding another voice to the call for reform of the law. In February a judge’s ruling prevented a libel case between Ukrainian businessman Dmitry Firtash and the Kyiv Post from being heard in London’s High Court. The judge wrote that Firtash’s connections to Britain were “tenuous in the extreme.”

Among those urging libel reform is Deputy Prime Minister Nick Clegg. This past January he called for reforms that would transform the U.K. courts “from an international laughingstock to an international blueprint.” But putting a new law in place is likely to take Parliament until 2013.

Other countries have taken steps to address the problem. This past August the United States enacted a law that prevents courts from recognizing foreign judgments that don’t meet the standards of the First Amendment. The precedent was a statute—enacted in New York State in 2008—known as “Rachel’s Law” because it was prompted by outrage over the London suit against Ehrenfeld. The formal name—”Libel Terrorism Protection Act”—bears an apt description for how a lot of publishers feel about the Duke of Brunswick’s enduring legacy.