I've been writing about impending British libel reform for almost two years now, putting a post together every time something happens to bring the United Kingdom closer to fixing its quite-literally-backwards defamation laws. "Ooo, the High Court has tossed a textbook libel tourism case," I cheered in November 2009. "Aah, the justice minister has publicly endorsed libel reform," I applauded in March 2010.
But now it really looks like libel reform is happening in the United Kingdom. Finally, FINALLY, the British government has put pen to paper and written a draft defamation bill that addresses at least some of the glaring flaws in the British defamation tort that have earned London the (not-so) honorific of "libel capital of the world."
First, a brief recap of Britain's libel laws, which generally are the opposite of those in the rest of the Western world. In the UK, a libel defendant must prove that the comments he made are true, rather than the plaintiff having to prove them false. Also, there is no protection for journalists who performed their job in good faith, with due reporting diligence. Nor is there a robust "fair comment" exception to British libel. And Britain doesn't have a "single publication" rule, so every printing or download of an article potentially risks a new case of libel. Needless to say, all these factors weigh heavily in favor of those bringing defamation lawsuits in Britain.
And bring defamation lawsuits in Britain plaintiffs have. More importantly, plaintiffs have been bringing cases to Britain from abroad - most notably (from a US perspective) in the case of American author Rachel Ehrenfeld. Ms. Ehrenfeld was sued in Britain by Saudi banker Khalid bin Mahfouz, whom she accused in one of her books of financing terrorism. Mr. Mahfouz won a $225,000 default judgment against Ehrenfeld, due in no small part to the pro-plaintiff biases of the British defamation tort. The judgment against Ehrenfeld so offended American sensibilities (and also likely due to the plaintiff being an alleged terrorism backer) that several states and the federal government passed laws barring the enforcement of many libel judgments in US courts.
So, what does the proposed bill bring to the table? The Libel Reform Campaign (LRC), a coalition to enact (you guessed it) libel reform in the UK, says that the bill "delivers just over half of the reforms set out by the campaign," including a raising of the harm threshold for libel actions, tighter jurisdictional requirements when plaintiffs are domiciled abroad, and the creation of a single-publication rule.
The new jurisdictional language is particularly encouraging, as it directly addresses libel tourism. Under the bill, British courts do not have jurisdiction to hear claims brought by those who are not domiciled in Britain, an EU state, or a Lugano Convention state, unless the court is convinced that "England and Wales is clearly the most appropriate place in which to bring an action in respect of the statement." So no more Mahfouz-style defamation suits.The bill also clarifies two existing defenses, those of "truth" and "fair comment," such that they are more cleanly defined, and adds a brand new defense of "public interest":
It is a defence to an action for defamation for the defendant to show that
(a) the statement complained of is, or forms part of, a statement on a matter of public interest; and
(b) the defendant acted responsibly in publishing the statement complained of.
British media law blog Mediabeak calls it "a welcome inclusion," noting that the new defense along with the bill's other refinements and additions will "give the press the added security that where there is wrongdoing, indiscretion, lying, cheating and general dodgy dealing then it can ply its trade without the odds being unfairly stacked against exposing those with low morals and deep pockets."
The one thing that still irks about the new bill, at least from an American perspective, is that it still places the burden of a truth defense on the defendant. It still seems unfair and inefficient to put the burden of proving a statement's truth on the defendant when the plaintiff presumably has much easier access to everything they need to disprove the claim. Perhaps, with the changes the bill makes to strengthen 'fair comment' and tighten jurisdiction, the backwardness of the truth defense will not be as much of an issue. But I still worry about situations where a limited-resource defendant faces a super-wealthy corporate plaintiff - why should the poor village blogger have to prove the truth of a statement that the rich City executive ought to be able to disprove with minimal effort?
While the LRC did not single out the defendant's burden in a truth defense, it did have several concerns about the bill as it's presently drafted. Specifically, the LRC hoped that the bill would be revised to include:
• An end to the ability of claimants to censor criticism extra-judicially by threatening innocent hosts (including web-hosts and internet service providers) of allegedly defamatory material with libel actions
• Radical restrictions on the ability of corporations to sue in libel to protect their reputations, as applies to some public bodies
• Altering procedures in courts to reduce the time it takes to reach trial and the costs of libel actions
Still, legislation is never perfect in its first draft, and this bill makes so many improvements to British defamation law that it's hard to complain too much right now, when the bill is in consultation until June 1 (i.e., the British government has opened the bill to public comment until then). Hopefully the government will address the LRC's concerns and further tighten up the bill this summer. But even if it becomes law as it is now written, it's a great step forward for British defamation law.
Arthur is the intake attorney for the Online Media Law Network at the Berkman Center. Before attending law school, he was the online news editor at The Christian Science Monitor.