Britain Chills Free Speech

By Wall Street Journal | by Salil Tripathi
Thursday, June 4th, 2009 @ 1:35AM

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Libel tourists flock to the U.K. to avoid public scrutiny.
Simon Singh is an award-winning British science writer. In the best-selling “Fermat’s Enigma,” for example, he described the 350-year quest for the proof of Pierre de Fermat’s last theorem, which eluded mathematicians until the 1990s. Now his inquiring mind has got him into trouble with U.K. libel laws — laws that have long stifled free speech not just in Britain but around the world. In April 2008,

Mr. Singh wrote an article in the Guardian challenging the British Chiropractic Association’s claim that its treatments can cure, among other ailments, colic among infants, ear infections, and asthma. Mr. Singh said there was no evidence to support these claims, which he called “bogus.” The association could have challenged the author in an open debate, providing the evidence Mr. Singh said did not exist. Instead, it sued the author for libel. In a remarkable ruling last month, Justice David Eady decided that Mr. Singh’s article was defamatory because, according to the judge, Mr. Singh implied that the association deliberately misled the public. Mr. Singh, though, didn’t suggest that the chiropractors were being dishonest — after all, they might sincerely believe that their treatment is effective. He simply questioned the scientific validity of their claims. But that was no longer the issue.

Ironically, Britain’s Advertising Standards Authority upheld last month a complaint against a chiropractor’s claim that he could treat children with colic and learning difficulties. Mr. Singh now can either settle the case or fight it, first within the British system, and then, if necessary, all the way to the European Court of Human Rights. His defense costs have already set him back $100,000. Should he pursue the case to the bitter end, his legal bills could rise with geometric progression.

How did we get here? Unlike in the United States, where plaintiffs have to prove that the defendant’s statement is willfully false and defamatory, the burden of proof is reversed in Britain. According to U.K. libel laws, the plaintiff has to show only that the statement harms his reputation — which is the case with almost any accusation, true or false. It is the defendant who must then prove that his allegations were not libelous. The damage awards are often in the hundreds of thousands of pounds. Ditto lawyers’ fees. The mere prospect of possible financial ruin in a process where the cards are stacked in favor of the plaintiff has chilled free speech.

In a democracy, though, laws should encourage, not penalize, vigorous debate and investigative reporting. Instead, lawsuits are stifling the spirit of inquiry, which is at the heart of science and sound journalism. The impact on the media goes beyond stopping sleazy tabloids prying into the private lives of celebrities. It is far more serious, suppressing coverage of political and security matters of great interest to the public. Fear of spurious libel suits have convinced some editors to ignore certain stories. I was told myself by two British publications not to bother pitching articles about companies from certain countries out of fear of litigation.

After receiving complaints from Saudi businessman Khalid bin Mahfouz, Cambridge University Press in 2007 pulped copies of “Alms for Jihad: Charity and Terrorism in the Islamic World” by J. Millard Burr and Robert Collins. Similar concerns over possible lawsuits also caused Random House in 2004 to cancel publication in the U.K. of Craig Unger’s “House of Bush, House of Saud,” a best-seller in the U.S. British libel laws claim almost universal jurisdiction, allowing plaintiffs to sue over publications that may have only a tenuous link with Britain.

This in turn has encouraged libel tourism — a lucrative business for British lawyers — as foreigners jet to British courts seeking protection from public scrutiny. As a consequence, the U.S. Congress is considering a bill that would make British libel judgments unenforceable in the U.S. This unusual step, invalidating British judgments, is the direct consequence of another case involving Khalid bin Mahfouz. He won a verdict against American author Rachel Ehrenfeld, who examined the flows of Saudi money to Islamist terrorists in her book “Funding Evil: How Terrorism Is Financed and How to Stop It.” The judge — the same David Eady as in Mr. Singh’s case — ruled in the plaintiff’s favor even though the offending book was not available for sale in U.K. book shops and only a few copies may have been sold in the U.K. on the Internet. Ms. Ehrenfeld and her publisher had decided not to publish the book in Britain for the very purpose of escaping British libel laws — but to no avail.

Among other recent foreign cases heard in London are that of Kaupthing, an Icelandic bank, which filed a lawsuit against Ekstrabladet, a Danish newspaper for alleging that the bank had dodged taxes. Other tycoons and celebrities have helped themselves through the generosity of the British libel law system. Russian oligarch Boris Berezovsky sued U.S. magazine Forbes in 2000. A Ukrainian businessman, Rinat Akhmetov, sued two Ukrainian publications in British courts. The Labour government doesn’t seem to think that the libel laws tarnish the reputation of the world’s oldest parliamentary democracy. To the contrary, British lawmakers from all parties have often threatened and sometimes pursued legal action against newspapers to stop them from publishing reports.

And so Mr. Singh is unlikely to be the last victim of Britain’s libel laws. Settling scientific and political disputes through lawsuits, though, runs counter the very principles that have made Western progress possible. “The aim of science is not to open the door to infinite wisdom, but to set a limit to infinite error,” Bertolt Brecht wrote in “The Life of Galileo.” It is time British politicians restrain the law so that wisdom prevails in the land, and not errors.

Mr. Tripathi, a writer based in London, is on the executive board of the English PEN and a member of its Committee to Reform English Libel Laws. Printed in The Wall Street Journal, page A13 Copyright 2009 Dow Jones & Company, Inc. All Rights Reserved

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