Could Britain finally be moving to shed its unflattering title of "libel capital of the world"?
We can only hope, of course, but it does appear to be edging that way, thanks to a recent High Court decision to toss a textbook "libel tourism" case. In the case, Out-law.com reports that Mr. Justice Tugendhat threw out the claims brought by Zimbabwe-oriented investment firm LonZim and two executives against Andrew Sprague, who criticized the company on the website of a South African magazine in May 2009. The plaintiffs alleged that Sprague's article false accused them of "cynically and greedily indulg[ing] in self-enrichment at the expense of, and contrary to the interests of, shareholders."
LonZim argued that "a significant proportion" of the South African magazine's traffic was from England and Wales, the High Court's jurisdiction. But in a departure from some of the more objectionable British libel decisions — like the case against Dr. Rachel Ehrenfeld, which founded jurisdiction on 23 copies sold in the UK on Amazon — Tugendhat held LonZim's feet to the fire and required it to prove that this was the case. And LonZim couldn't make the requisite showing:
Sprague presented evidence of traffic figures from the website for the two months following the date of first publication. The publishers had recorded a total of 65 visits for the contentious article.
"It is not possible to say whether these visits included more than one visit by the same person," noted Mr Justice Tugendhat. "Nor is it possible to say in which jurisdiction the visitors were located."
The publishers did say that on average approximately 6.79% of visits to their website are made by users of the internet based in the UK. "If the average percentage of 6.79% is applied to the 65 visits, the result is that about 4 visits might have been made by one or more visitors based in the UK," said the judgment. (Source)
Tugendhat noted that even those four visits may not have been within the court's jurisidiction. Were the visits made from Scotland or Northern Ireland — both of which are in the UK but outside the High Court's jurisdiction — they wouldn't count for LonZim's purposes. "London is not the only important financial centre in the UK," the judge noted. "Edinburgh is another." Thus, the plaintiffs failed to show a "significant" number of English and Welsh readers of the article, undermining their claim of reputational damage.
Nigel Hanson of British firm Foot Anstey writes that Tugendhat was following the lead of the case of Dow Jones v. Jameel, which held that a plaintiff pursuing a libel claim must show that a "real and substantial tort had been committed in this jurisdiction," as measured by both the extent of the publication within the jurisdiction and the amount of harm that the plaintiff's reputation suffered. Certainly, such a requirement like this ought to decrease the number of weak libel lawsuits imported into Britain. With the web logging technology available out there, it ought to be relatively easy to distinguish legitimate claims from frivolous ones.
Still, Hanson writes, foreign publishers are justifiably wary of English libel law, despite these "sensible and pragmatic rulings":
Some American newspapers and magazines, for example, are said to be considering whether it is still worth the risk of supplying the 200-odd copies they make available for sale in this country for subscribers and hotels, because London is still regarded as the libel capital of the world.
Foreign publishers are also reported to be considering blocking access to their websites in this country for fear of being sued for libel here.
Media organisations including The Boston Globe, The New York Times, and the Los Angeles Times recently sent a Memorandum to the House of Commons, outlining their concerns about English libel law's 'chilling effect' on freedom of expression.
And pressure groups Index on Censorship and English PEN recently issued a report calling for radical reform of our libel law to facilitate the free exchange of ideas and information. Their report makes 10 key recommendations, such as capping damages at £10,000, expanding Fair Comment and Public Interest defences, and curtailing the right of corporations to sue for libel. (Source)
Hanson argues that the English judges enforcing this standard deserve credit. And he's right, they do. This is an admirable step. Still, the rulings of a High Court judge and one Court of Appeals panel do not permanent British law make. Until the British Supreme Court or Parliament weighs in on the matter, there's no guarantee that either of these cases will hold up. And that being the case, foreign publishers are wise to keep the pressure on. Britain hasn't shed its libel title just yet. But hopefully it will soon.
(Arthur Bright is a rising third-year law student at the Boston University School of Law and a former CMLP Legal Intern. Before attending law school, Arthur was the online news editor at the Christian Science Monitor.)