Britain's effort to reform its defamation laws and shed London's title of "libel capital of the world" has been chugging along for several years, but now it looks like it's in sight of the last stop: The government unveiled its proposed new defamation bill in early May. So what has all this time and effort wrought?
(Before I get into it, note that I use "Britain" and "British" in this piece to as shorthand for England and Wales. The Scots and Northern Irish have their own legislative bodies and will not be beholden to this bill.)
One Step Forward...
First, the good news: The bill does make noteworthy progress on the problem of libel tourism.
If you are unfamiliar with the phenomenon, libel tourism is the practice of bringing libel lawsuits in Britain, where defamation laws are very plaintiff-friendly, even in situations where the case has limited connection to the jurisdiction.
The poster child for libel tourism in London is Rachel Ehrenfeld, a US author who in one of her books laid out an argument accusing Saudi banker Khalid bin Mahfouz of financing terrorism. The book in question was published and sold primarily in the US; a scant 23 copies were sold in Britain. Nonetheless, bin Mahfouz sued for libel in London, winning a default judgment of $225,000 against Ehrenfeld.
Unfortunately for Ehrenfeld, she couldn't avoid the judgment at the time simply by staying out of Britain. Bin Mahfouz could have sought enforcement in the U.S. courts under comity principles, keeping the threat of the judgment alive. Indeed, it was Ehrenfeld's situation (and its terrorism undercurrent, no doubt) that led several states and the federal government to enact libel tourism bars like the SPEECH Act of 2010. Under the Act, U.S. courts will now not recognize foreign libel judgments if those judgments do not stand up to a First Amendment analysis. Still, the risk of libel tourism judgments remains for those in other jurisdictions, particularly the European Union.
Despite what some commentators would have you believe, this is a real problem. Admittedly, it's not a problem for the Brits. But it's a problem for the rest of the world that has to deal with the fallout from Britain being such a weak spot in the wall of free speech protections. And I'd argue that it doesn't do the British any favors when the rest of the free world thinks their law is of dubious quality.
The reasons for libel tourism being such a problem in London are myriad. Among the holes in British law:
- British courts have a tendency, illustrated by the Ehrenfeld case, to be overenthusiastic in finding they have jurisdiction to hear defamation cases. That makes it very easy for plaintiffs to bring cases that should otherwise be heard in less friendly litigative environs.
- Britain lacks a "single publication" rule. This is particularly pernicious online, as it means every time a website is accessed, it is considered "republished," thereby resetting the statute of limitations.
- British law offers only amorphous, watered-down protection to journalists who use due diligence and report responsibly. While the "Reynolds defence," established in Reynolds v. Times Newspapers Ltd., offers some protection for reports in the public interest that may be defamatory, it is no New York Times v. Sullivan. British judges have interpreted Reynolds in a number of ways that are less than protective of the media. In addition, Reynolds was undermined by the Court of Appeal in 2010's Flood v. Times Newspapers Ltd.
- While the defense of truth exists, the truth of an offending statement must be proven true by the defendant. This is just the opposite of the US, where the burden is on the plaintiff to show the statement's falsity.
Fortunately, the new defamation bill addresses all these points, with generally positive results.
Section 9 reins in the British jurisdiction by establishing that a court "does not have jurisdiction to hear and determine an action to which this section applies unless the court is satisfied that, of all the places in which the statement complained of has been published, England and Wales is clearly the most appropriate place in which to bring an action in respect of the statement." This should put a stop to Ehrenfeld-type situations, where British jurisdiction over the dispute is tenuous at best.
Section 8 establishes a much needed single-publication rule. Under the bill, "any cause of action against the person for defamation in respect of the subsequent publication is to be treated as having accrued on the date of the first publication," and subsequent publications reset the statute of limitations only "if the manner of that publication is materially different from the manner of the first publication." Hopefully this will put an end to the phenomenon of endless windows of liability.
And Section 4 puts the Reynolds defense into codified form. While still no Sullivan, Section 4 at least reestablishes the defense after the damage inflicted by Flood, and moves the defense of "responsible publication on matter of public interest" away from the less stable realm of common law and into the somewhat more robust world of legal code. It will be much harder for a judge to ignore or minimize the defense now.
Unfortunately, the "truth" defense appears to be unchanged – the burden remains on the defendant to prove the offending statement's veracity. But to be fair, given the existing state of British tabloids as a generally sleazy lot, I understand the reluctance to take the onus of proof off of them. Still, if the truth burden were switched AND libel damages were boosted – the fact that libel damages are low in Britain makes it possible for the press to plan for libel suits as a business expense, thereby making such suits tolerable even if frequent – Britain would quickly adapt to an American model of libel, I'd think.
Still, even absent an improvement on the "truth" front, the libel tourism provisions of the bill look generally positive.
...One Step, and Maybe More, Back
But then there's Section 5, which takes at least one, if not several, steps backward when it comes to anonymous online speech.
Nominally, Section 5 is meant to provide greater protections to "website operators" regarding libelous third-party content. In situations where a site operator is sued for a third party's post on the site, the section says "it is a defence for the [site] operator to show that it was not the operator who posted the statement on the website." That's good...
...BUT the section also sets out a means for overcoming that defense, in the form of a notice-and... well, -something provision. To overcome the defense, the plaintiff must show that:
- it was not possible for the plaintiff to identify the person who posted the statement;
- it sent the operator a notice of complaint about the statement; and
- the operator failed to respond to the notice of complaint in accordance with as-yet-unwritten regulations.
This leads to a number of problems, as Graham Smith of CyberLeagle points out. Indeed, I would highly recommend reading his critique of Section 5; Smith admirably raises several points of concern. I'd like to highlight a couple that are particularly worrisome, however.
First, consider the first portion of the counter to the defense: that the plaintiff must show it was not possible to identify the person who made the statement. Now, this is an excellent defense for website operators when the person who made the offending statement uses their real name, as it immunizes the site operator from any liability in such cases.
But in today's Internet, how often do people use their real names? Anonymous and pseudo-anonymous posts are far, far more commonplace. As such, the first prong of the counterdefense turns out likely to be a very low bar: A plaintiff will rarely ever know the identity of the original poster, for otherwise the plaintiff would be suing that person. Of course, the plaintiff will always be incentivized to send notice (prong two), in order to keep the counterdefense available to him. Thus, the counterdefense will almost always turn entirely on the third prong: the operator's response to the notice.This leads to the second flaw I'd like to note: that the legislation detailing the response's requirements does not yet exist. That's a pretty huge hole. As Smith says, the section "leav[es] significant elements to be prescribed by secondary legislation. The clause reads as if the drafters gave up half way through and punted off the most difficult aspects to a statutory instrument."
The tandem of these two drafting flaws – the first prong's uselessness as a defense for anonymous speech and the lack of any detail about the third prong's requirements – makes Section 5 into a very dangerous piece of legislation for online speech. It could almost be read as an attack on anonymous online speech, depending on what the third prong ends up entailing. A harsh set of third-prong regulations – say, a takedown provision – would incentivize website operators to remove third-party content at the drop of a hat. This would be fine if people used notice-and-takedown provisions conservatively and legitimately, but experience with the DMCA shows that abuse is all-too-common.
And even putting aside abuse of the system, copyright infringement is comparatively simple to understand when put against defamation. Does Parliament really want, let alone believe, that website operators should determine what content is defamatory? Because they're not going to. What they're going to do, if put in that situation, is take down everything they're notified about for fear of litigation. And unless the as-yet-unwritten regulations are very, very friendly to site operators, that fear will be acute.
And this is just one problem; Smith highlights several other flaws in the litigation including what constitutes "identity" in the first prong, what the implications are of calling the I-didn't-post-it defense a defense, and the lack of definition of "website operator." (As Smith writes, "Is an individual blog hosted on the platform a website? If so who is the operator: Google, the blogger, both? Is Facebook a website? Is Twitter a website? Is World of Warcraft a website?") Section 5 is quite troubling, and could turn out to be a huge mess.
If I were a British MP, I'd be strongly tempted to vote against this bill and send it back to its authors for revision. Its libel tourism reforms are valuable, to be sure. But Section 5 has too many threatening implications for online speech. We've survived with libel tourism this long, we can survive with it a little longer if it means avoiding the chilling effects that Section 5 threatens. Better the devil the Brits know than the devil they don't.