Discouraging Libel Tourism in the United Kingdom Essay

Introduction

Libel tourism is some sort of ‘forum shopping’ where a plaintiff opts to bring an action of libel in jurisdictions where favorable outcomes are more likely to occur.¹ Britain is internationally reputable as a sanctuary of free speech and this reputation is immensely getting damaged by the increase of libel tourism in the United Kingdom. For more than 20 years now, the numbers of foreign businessmen and celebrities who take advantage of libel laws in Britain have drastically shot up.

Numerous people today who have no connection with the United kingdom are seeking libel redresses from British courts. The extreme nature of this problem can effectively be illustrated by the United States’ new measures of preventing libel decisions made in Britain that infringe on an individual’s freedom of expression. Rich libel tourists will soon be stopped from using British courtrooms for stifling free speech following the amalgamation of the new draft defamation bill which is intended to discourage libel tourism in the United Kingdom.

Libel laws in the United Kingdom are known to be more draconian than in other states and hence, when one gets upset about another person’s speech, he/she often seeks redress in English courts on grounds that since the label has been published online, it is also published in the United Kingdom. Nevertheless, all these hiccups will soon be made a problem of the past since the new draft Defamation Bill comes in handy to seal this loophole.

It is upon this backdrop that this paper seeks to compare the reforms made by the new draft Defamation Bill which is intended to discourage libel tourism, with the current prevalent law on libel tourism and assess what exactly the new bill could reform in libel cases and also assess whether the draft effectively addresses the issue in question. In doing this, the paper will begin by analyzing the nature of the United Kingdom libel law using relevant statutes and case law.

The paper will then outline and discuss the major reforms addressed by the new draft Defamation Bill against the current law on libel tourism. The paper will then give recommendations and conclude based on a personal opinion regarding the reform addressed by the new draft Defamation Bill.

A Review of the Nature of Libel Law in the United Kingdom

The general rule is that a claimant of a libel suit can bring an action for libel in British courts whether or not he/she is a citizen of the United Kingdom or domiciled in the United Kingdom. This is executed on the condition that the claimant proves that they have a reputation to protect in the United Kingdom and that the label was accessible by some people in the United Kingdom.

The claimant must also prove that the libel is defamatory and that it refers to the claimant and is published by the defense party to third parties. A libel constitutes defamatory words in written form such as in a newspaper article or a book. As long as the claimant establishes all of the above-stated conditions, the burden of proof then shifts to the defendant to assert the truth of the libel.

A defamatory statement according to the cases of Sims v Stretch (1936)², Gilliack v BBC (1996)³ and Skuse v Granada Television Ltd (1996)⁴ is a statement that tends to put a person in an inferior position according to the estimation of a reasonable man in the society or rather in the eyes of men of ordinary prudence in the society.

The case of Jameel v Times Newspapers Ltd (2004)⁵ effectively outlines the test of what exactly constitutes a libel in British courts. This test entails six major steps which are:

1. The reasonable man test where the court gives the matter in a complaint the ordinary and natural meaning a reasonable man would give to it.
2. A hypothetical man of ordinary prudence is neither unduly suspicious nor naïve. However, he must be taken as a person who is not keen on any scandal and as a person who should not choose any bad meaning where other non-defamatory meaning as was referred to in the case of Hart v Newspaper Publishing Co (1989)⁶
3. The court should take caution against an exaggerated analysis of the issue in question.
4. The court’s approach must not be too literal as per the case of Lewis v Daily Telegraph Ltd⁷.
5. A defamatory statement is a statement that tends to put a person in an inferior position according to the estimation of a reasonable man in the society or rather in the eyes of men of ordinary prudence in the society.
6. The court should not be restrained by the defendant’s or claimants’ meanings in determining the meaning of the issue in question.

In determining what exactly constitutes libel, the above case law is injected as well as the Defamation Act 1996⁸ and the Electronic Commerce Regulations 2002⁹. In the case of Hulton v Jones (1910)¹⁰ it was held that the allegations of libel must clearly point out the individuals involved, though not necessarily mentioned by name, some sort of reference to them is important. In this case, intention only becomes relevant in the mitigation of the damages.

Whether or not a person can bring a libel claim in British courts is dependent on two major factors. The British courts must have jurisdiction to hear such a case subject to common law rules and the law of tort in the United Kingdom and the libel claim must be subject to the law rules choice that determine the law applicably.

These rules effectively apply to internet cases. In general terms, an individual is domiciled in the United Kingdom by residency and having connections with the United Kingdom. Companies registered and incorporated under the United Kingdom law are domiciled in the United Kingdom by that virtue.

A Comparison of the Major Reforms Addressed by the New Draft Defamation Bill with the Nature of the Current Libel Law

The recent launch of the new draft defamation Bill was primarily aimed at laying a reform for libel tourism to enhance free speech, protect people’s reputation and put an end to the unreasonable threats of libel suits. To lay a general outline and discussion of the draft Defamation Bill, there are eight major reforms addressed by the bill. These reforms are;

Proving Substantial Harm

A claimant in libel litigation must prove that the libel statement caused him/her substantial harm as explained by Section 1 of the new draft Defamation Bill. Nevertheless, this statement simply relays or restates the relevant principles of common law. The Bill’s explanatory notes hold that this section builds on the courts consideration in regard to the issue of what constitutes a defamatory statement.

In doing this, reference was made to the recent case of Thorton v Telegraph Media Group Ltd (2010)¹¹where the decision of the House of Lords in the case of Sims v Stretch (1936)¹²(this case held that a defamatory statement is a statement that tends to put a person in an inferior position according to the estimation of a reasonable man in the society or rather in the eyes of men of ordinary prudence in the society) was pinpointed as authority for the subsistence of a seriousness threshold in regard to what constitutes a defamatory statement.

It is very unlikely that the proof of substantial harm by the claimant will be handled more differently from the subsistence of a seriousness threshold in regard to what constitutes a defamatory statement. This reference to the holding of the House of Lords proves that this section of the Bill only restates the common law principles of what constitutes a defamatory statement. A common saying has it that mediocrity is doing the same thing over and over again and expecting different results. In the same way, reinstating the same common law principle in the new bill that has proved futile in protecting the reputation of the defendant and supporting free speech and expecting a positive change is a misnomer.

More so, in regard to what exactly constitutes a defamatory statement, the test laid down by the bill is objective and may at times be impractical especially in cases where a claimant has been completely shunned/left by others.

The Responsible Publication Defense

Under section 2 of the new Bill, the defendant can adduce that the material case in question relates to matters that concern the welfare of the entire public and that in publishing it, the defendant acted responsibly. With this kind of similarity between these two laws, fears arise unto whether this clause tow will be effective in protecting the defendant.

In addition, the Bill does not make any attempt to define what constitutes public interest and the sections explain that doing so would not be straightforward. Whereas the ‘Reynolds Privilege’ defense was acknowledged originally by the House of Lords as an important leeway for free speech, restrictive applications of the same defense in other later cases before the case of Jameel v Wall Street Journal¹³ portrayed its ineffectiveness in supporting free speech.

Truth

The defendant has a burden to prove the truthfulness of the libel statement in question as relayed under section 3 of the new Bill. This defense of truth replaces the defense of justification in common law and more so, it is analogous to section 16 of the Act¹⁴ which also contains the defense of truth. It is a difficult task to tell whether this forms a material difference as was illustrated in the case of Chase v News Group Newspapers Ltd (2002)¹⁵ but with time, case law will prove the distinction or rather the similarity.

Honest Opinion

This provision replaces the principle of fair comment under common law latterly given the name of honest comment in the case of Spiller v Joseph (2010)¹⁶. The two conditions to this clause simply portray how the Bill seems to give in one hand and take away in the other since the defense will not hold if its established that the defendant did not hold an honest opinion and under common law, the defense is defeated by an element of malice.

Privilege

Section 5 of the new Bill amends section 14(3) of the Defamation Act 19996 in regard to the accordance of absolute privilege to court proceedings. This section comes in handy to solve the Peter Wilmshurst new suit.¹⁷ The new suit concerns Wilmshurst’s explanation of his libel claim on the BBC radio in the year 2009. He received his notification only a few months after the United States company had filed a suit against him in the United Kingdom courts.

A question, therefore, arises as to whether this draft Defamation Bill goes further enough to address libel tourism in all its facets since the Bill does not protect anyone in a situation such as Wilmhursts. To worsen the situation, the 2007 case of Wilmshurst is still ongoing and still, the United States company (NMT Medical) go-ahead to bring another latest claim against Wilmshurst that he further defamed the company’s reputation.

Quoting the words of Wilmhursts legal representative, this second claim according to him is “an obvious insult to a system is trying to bully Wilmshurst rather than trying to the reputation of the United States Company.”¹⁸Wilmshurst legal representative continues to say that if the case really concerned the reputation of the United States company, they would have instituted proceedings against Wilmshurst as soon as the statement was made on radio. Doing it a year later and serving it at the last minute clearly proves that the purpose of this claim is to bully and intimidate the cardiologist.¹⁹

British laws concerning libel tourism have immensely been criticized for enabling large companies either based in the United Kingdom or not to stifle important debates relating to medical or scientific research or practice. According to Wilmhursts legal representative, the latest claim by the United States company (NMT Medical ) insults libel proceedings and also gives British libel laws a bad name.

The Ruling of Single Publication

The Bill under section 6 has it that a claim of defamation can be sued only a year later after its publication date regardless of the time it stays on a website. However, a re-publishing of the same material on different sites or mediums the claimant reserves the right to sue even after the expiration of the limitation period. The Bill has it t hat the first publication date is the date when the limitation period begins. More so, this rule is likely to cause potential unfairness and uncertainty especially when a publisher freely repeats a defamatory statement after they are more than a year old online.

Jurisdiction and Libel Tourism

Libel tourism is provided for under section 7 of the new Bill. Though libel tourism in the United Kingdom is a subject of a lot of criticism, the Bill to a greater extent remains silent over the issue and does not give much guidelines regarding the same. More so, in this 21^st century which is an era of media conglomerates and global business, the application of this section to material facts may at times prove to be not straight forward.

The Jury

Section 8 gets rid of the jury’s right to be present in libel trials. While the aims of section 8 are quite clear, the degree upon which the jury inhibits free speech is nevertheless not clear.

Relevant Recommendations

Having outlined the major reforms addressed by the Bill, it is of crucial importance to assert that though the bill comes as a great step forward for defamation law, the major matters under contention regarding public interest have not effectively been addressed such as libel tourism and hence, it would be important to note that the bill seems to give in one hand and take away in the other.

This is so because the bill only meets half of the demands of the general public and majority of campaigners and this is not enough to put a halt to the chilling impact on scientific and journalistic debates enabled by the current law. These major issues addressed by the bill raises such questions as to what extent will the bill protect the scientists, bloggers and journalists in airing out facts that concern the interests of the general public.

With libel tourism not extensively covered in the bill, the importance of reform becomes a pertinent issue. The Ehrenfeld case²⁰ is a landmark leading case on libel tourism. Rachel was sued by Mahfouz for allegations that his family and he were funding terrorists. More so, excerpts from this book had been globally published on the website of ABC News.

It was decided that the defendant should compensate $10,000 to each of the claimants and that the defendant should offer her apologies to the claimants for making false statements and more so, she was asked to destroy any remaining copies of the book in question.

This is one major case that led to t he call for reforms in libel tourism in the United Kingdom and though the bill has been put in place, it does not necessarily address issues such as the ones raised in the Ehrenfeld case. With very little addressed by the bill concerning libel tourism, the fate of the likes of cardiologist Wilmshurst Peter²¹ becomes uncertain since the case has drastically taken another turn with another libel suit being filed against him by the same United States company that had sued him in 2007. There are various reasons that attract many libel claimants to British courts. The strict liability imposed by United Kingdom libel laws, the rejection of single publication rule by English courts (a principle acceptable in American courts) forms one of these major reasons.

Conclusion

Though the Bill reflects the government’s determination to kill libel tourism, the Bill to a greater extent fails to address the most significant matter in libel cases which is libel tourism. Until the government opens their eyes to the obvious and handle libel tourism in regard to all its facets (even recoverable costs), the government will still be ignoring the most pivotal matter at stake. Whilst the Bill brings a little daylight to libel tourism, tackling the matter half way does very little to attain the simplicity and clarity the Defamation Bill seeks to attain. Thus, a lot still needs to be done. Nevertheless, the Bill makes some significant change and brings on the hope that something is being done to remedy the situation. Therefore, it should be received with widely open arms irrespective of its setbacks as discussed above.

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Footnotes

1. Cheri Yang; England’s Long Awaited Response to Libel Tourism. Web.
2. Sims v Stretch (1996) 2 ALL ER 1237.
3. Gilliack v BBC (1996) E.M.L.R. 267.
4. Skuse v Granada Television Ltd (1996) E.M.L.R. 278.
5. Jameel v Times Newspapers Ltd (2004) EWCA Civ 983.
6. Hart v Newspaper Publishing Co (1989, The Times).
7. Lewis v Daily Telegraph Ltd.
8. The Defamation Act 1996.
9. (EC Directive) Regulations 2002 (SI 2002/2013).
10. Hulton v Jones (1910) AC 20.
11. Thorton v Telegraph Media Group Ltd (2010) EWHC 1414 (QB).
12. Sims v Stretch (1996) 2 ALL ER 1237.
13. Jameel v Wall Street Journal (2006) UKHL 44.
14. The Defamation Act.
15. Chase v News Group Newspapers Ltd (2002) EWCA Civ 1772.
16. Spiller v Joseph (2010) UKSC 53.
17. The latest Libel Litigation by the United States Company (NMT Medical) against cardiologist Peter Wilmshurst.
18. Dan Wan; Peter Wilmshurst Sued Again in the Latest ‘Libel Tourism’ Case. Web.
19. Ibid.
20. The Ehrenfeld case.
21. The Libel Tourism Case of Peter Wilmshurst.