If the law is sometimes an ass, English libel law in the age of the internet is an ass in a mess. The case of Khalid bin Mahfouz which we report today is merely the latest in which wealthy litigants from foreign countries have sought – and in this case won – legal recompense for damage to their reputation in London, chiefly because the odds here are uniquely stacked in their favour. Such cases are based on the principle that the internet has made newspaper articles accessible globally, allowing claimants to sue not only here but in any jurisdiction where they claim to hold a reputation.
This can produce legal anomalies: Mr bin Mahfouz has sued the American author of an American book in England, even though the book has not been published here, on the ground that a handful of copies have been bought by British readers via websites and that one chapter has been accessible online. In the US, where free speech is constitutionally protected, the book has sold thousands of copies but has gone unchallenged. London is the libel capital of the Western world, and attracts endless foreign claimants. They are often seen as overseas “forum shoppers” convinced that English common law offers the best hope of burnishing their reputations. If the judiciary is not to suffer lasting damage to its own reputation, it must make sure that our own laws are not abused, and ensure a sensible balance between free speech and the protection of reputations.
Some steps have already been taken. The Courts and Legal Services Act 1990, in particular, allowed the Court of Appeal to reduce disproportionate jury awards in libel actions. There remains, however, a fundamental distinction between English and US libel law that has so far proved too easy to exploit through cyberspace: in English courts the burden of proof is on the defendant, while in the US the First Amendment to the Constitution requires a plaintiff to show that what has been written is either wrong or that the defendant has been malicious or reckless.
In short, there is a presumption of innocence in US libel cases, but not in English ones. One notable result has been the plethora of libel actions in the UK brought by foreign defendants named in US proceedings – and extensively reported on in US media – in connection with the attacks of September 11, 2001. Protection for those who have been genuinely libelled is a mark of civilised society. Equally important is access to justice through no-win, no-fee agreements for those who cannot afford steep legal bills. But the transatlantic legal playing field needs to be levelled. For this, it would be unwise to rely on legislation. It would also be unnecessary. There is no shortage of high-profile libel cases already working their way through the courts. The House of Lords and the Court of Appeal should use them to send would-be litigants a clear message that in cases where the major publication at issue has been abroad and the offending material has had only an ephemeral presence in Britain, even victors can expect token damages at best.