British libel laws: cutting off crucial information

Tuesday, August 1, 2006

Do libel laws matter? Do libel laws have any significance other than to a minority of publishers who are sued, and the plaintiffs who sue them?

I thought of these questions when a prominent London solicitor and libel specialist recently spoke to a group of American law students about the so-called “Arab Effect.” This was meant to describe the surge of libel suits brought in recent years in English courts by wealthy Arab plaintiffs. More important, it describes the impact of these suits on the law and on coverage of the war on terrorism.

After 9/11, the English and American press began aggressively to investigate and report the sources of financing of terrorism. Typically relying on official sources, the press named numerous well-heeled Arabs identified by the sources as having supported al-Qaida. The Arab plaintiffs retaliated, and retaining English solicitors and barristers, brought suit after suit in London courts against both English and American news organizations.

Despite negligible ties to England, and in some cases, despite minuscule publication of the offending coverage in England, the Arab plaintiffs found jurisdictional homes in the open arms of the English courts. And once jurisdiction was firmly established, the Arab plaintiffs exploited every advantage offered by England’s notoriously plaintiff-friendly libel laws.

English law gave the Arab plaintiffs a curious legal presumption; namely, that whatever unflattering statements the press had published about them were assumed to be totally false. The press defendants, therefore, had to bear the burden of proving the truth of their published allegations of links to terrorism. Official documents from non-English sources that the press defendants relied upon were typically inadmissible. The autocracies in the Middle East were ill-disposed to assist Western news organizations seeking to prove allegations about their subjects.

Compared with American practice, pretrial discovery was greatly limited. For example, the press defendants could not examine their Arab adversaries under oath before trial. How else could one prove that in the 1980s an Arab businessman gave funds to Osama Bin Laden?

British libel law
The Arab plaintiffs were secure in the knowledge that:

  1. English libel plaintiffs nearly almost always win.

  2. Damage awards are typically substantial.

  3. The losing press defendants must also reimburse them for nearly for all their legal fees and costs.

The principal legal advantage favoring the Arab plaintiffs, of course, lay in the absence of a press-protective written constitution. Correspondingly, the press defendants were hobbled by the lack of a written, constitutional guarantee that their good-faith coverage of an important public issue, i.e., financing terrorism, should trump the claims of damaged reputations of public figures involved in the issue. That absence proved fatal to the press defendants.

The Arab Effect predictably produced a succession of legal rulings, settlements, trials, damage awards, and cost-shifting decisions in favor of the Arab plaintiffs and against the English and American press defendants. Millions of pounds were transferred from the press defendants to the Arab plaintiffs and their solicitors and barristers.

The English solicitor who described the Arab Effect to the law students concluded with this observation: “It’s over.” The price was too high. The English press no longer covers how terrorism was and is financed. England’s oppressive libel laws succeeded in cutting off the flow of important information about terrorism to readers in England and elsewhere.

If the Arab Effect is any example, it is fair to conclude that libel laws may have an impact far beyond the immediate concerns of the parties to a libel lawsuit. In any particular country, do the libel laws operate to protect corrupt public officials by penalizing aggressive exposure of corruption? Do journalists face imprisonment if a court rules that they libeled a corrupt politician? Where oppressive libel laws operate to deprive a society of the watchdog role of the press, corruption inevitably flourishes.

A needed resource
The idea that libel laws do really matter underlies an important new book, International Libel & Privacy Handbook: A Global Reference for Journalists, Publishers, Webmasters and Lawyers, edited by Charles J. Glasser Jr., who is media counsel to Bloomberg News. The handbook is a welcome and needed resource in an era where, to the press, globalization means they can and will be sued anywhere and everywhere.

The handbook examines the libel and privacy laws of 19 nations and explores everything from Internet law to fair use law to the enforcement of foreign judgments. The 30 contributors — including Edward Davis (Davis Wright Tremaine), Slade Metcalf (Hogan & Hartson), and Kurt Wimmer (Covington & Burling) — are among the most experienced and sophisticated media lawyers in the world, with practices in Australia, Belgium, Brazil, China, England, Germany, India, Italy, Russia, Switzerland and the United States, among other nations.

Glasser asked each of his respected contributors to address 21 questions dealing with the law of libel and privacy. In addition to a thoughtful introductory essay with emphasis on four maxims (e.g., “Don’t Confuse the Right to Publish With What’s Right to Publish”), Glasser also provides a useful appendix by way of a cross-reference chart of certain tenets of media law as set out in the 19 nations' laws.

Glasser correctly notes that the “threat of libel litigation is now exacerbated by the reach of the Internet.” Accordingly, the press has discovered that publishing on the Internet may expose publishers to liability for libel wherever someone can visit their Web sites. In that regard, among others, the handbook offers editors and reporters sensible and expert summaries of libel and privacy laws of those 19 countries where they may face litigation. Its chief attribute is to dispel any illusion that the world of libel law is created in an American image. Nothing could be further from the truth. The First Amendment has not yet been exported.

Consider some commonplaces of foreign libel law that the First Amendment typically forbids here:

  • Convicting and jailing a journalist for criminal libel.
  • Extra protections against criticism for high office holders.
  • Obligatory right-of-reply laws.
  • Confiscation of press runs.
  • Shuttering newspapers and broadcast stations.
  • Forced publication of adverse court orders.

The hazards of attempting to project American libel principles abroad are graphically illustrated in Glasser’s chart covering this question: Is truth a defense to libel? Of the 19 countries surveyed, four deny this defense to a publisher, and six provide only a qualified defense.

Charles Glasser, a former working newsman, has for years served as Bloomberg News’ highly effective media counsel. He is eminently qualified to craft the handbook as an indispensable reference tool for the journalistic and legal professionals who seek to manage risks while getting out the news to a global audience.

Richard N. Winfield teaches comparative mass media law at Columbia Law School and American mass media law at Fordham Law School. He chairs the World Press Freedom Committee and coordinates the media-law working groups of the International Senior Lawyers project and the Central European and Eurasian Law Initiative. He was general counsel to the Associated Press for more than three decades.

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