By The Guardian | by Afua Hirsch
Monday, June 15th, 2009 @ 12:49AM
Is the fear of legal action creating a chilling effect for investigative journalism? Campaigners want British laws changed so libel tourists stay away
The following correction was printed in the Guardian’s Corrections and clarifications column, Tuesday 16 June 2009. John Kampfner is the chief executive of the freedom of expression group Index on Censorship. We mistakenly referred to him as the group’s chairman in the article below. As the row over the salaries of onscreen talent made headlines last week, the BBC quietly came to an out-of-court settlement with one of the UK’s best-known fertility doctors. The case received little attention and yet goes to the heart of an important battle over libel in this country.
The BBC faces a payout of about $1m after agreeing to settle a libel action brought by Dr Mohammed Taranissi over a Panorama programme, IVF Undercover, broadcast in January 2007. Taranissi claimed the report, which relied on undercover filming at his Assisted Reproduction and Gynaecology Centre clinic, made defamatory allegations about his controversial but effective techniques. The claim was vigorously defended by the BBC, which initially argued the documentary represented responsible journalism acting in the public interest, before withdrawing that defence citing the “hazards” of protecting confidential sources. The Egyptian-born doctor, whose wealth is estimated by the Sunday Times Rich List at $38m, maintained that he was the victim of a “witch hunt”. A BBC spokesman said: “In settling this case both parties recognise that whilst Mr Taranissi refutes the allegations, the BBC continues to stand by its journalism.”
Yet BBC insiders fear the legacy of the Taranissi affair will be a further increase in risk averseness at the corporation. “We are so nervous about making sure that we are accountable for our licence fee, lots of us producers are worried about settling,” a producer inside the BBC says. “It has got to the stage where we can’t take on certain investigations. A lot of the high-profile undercover work has been dropped from documentaries … The Secret Policeman, The Secret Agent – our undercover filming of the BNP. It’s too risky now – we are nervous about broadcasting anything that has a serious chance of ending up in court.” “As well as the financial implications of fighting cases, there is a general fear about how it will affect the BBC’s image,” he adds. “We are scared of both.” The BBC dismisses these fears. “We don’t recognise libel as one of the risks of journalism,” says the spokesman, citing programmes such as Primark on the Rack and Princes, Planes and Payoffs. “The fact that a few cases are settled doesn’t influence our approach.” The fears over libel reporting come as, in a separate development, Britain’s laws attract increasing international attention.
Some have claimed that London is developing an industry for “libel tourism” because of the relative ease with which complainants can sue. In an influential article last week, American attorney Floyd Abrams argued that many UK libel claims would never have succeeded under US law due to the onus on the claimant to prove malice. “Under American law, there could be no credible claim made … unless [the claimant] could demonstrate that [the defendant] had acted negligently or worse and the work done to prepare the story would be admissible (indeed central) on that issue,” he wrote. Using the defence of justification, Abrams argues that “the nature of the care devoted by [the defendant] to the story would be irrelevant.” His comments reflect widespread criticism of UK libel law as too “claimant-friendly”, due to the requirement again of the justification defence that authors of potentially defamatory statements must prove the statement is true.
In the US, in contrast, a statement is presumed to be true unless the person bringing the claim can show it was false and that there was “actual malice”, or that the falsehood was intentional or reckless. “There is no reason why something which injures your feelings should be presumed to be false. It’s inherently illogical,” says media lawyer Mark Stephens. “The current law is so well-entrenched that it is a matter that can only be dealt with by legislation,” he adds. Free speech “England has become the favourite destination of libel tourists from around the world, especially wealthy tourists from countries whose own laws are downright hostile to free speech,” says congressman Steve Cohen, one of a group of politicians supporting legislation in the US that would block the effects of libel decisions in London considered contrary to the US constitution. A new law currently before Congress – the Free Speech Protection Act – would protect Americans from the effects of UK libel law.
Two US states, New York and Illinois, have already enacted such laws after US author Rachel Ehrenfeld was sued by Saudi billionaire Khalid bin Mahfouz in London because her book, Funding Evil, alleged links between him and terrorist groups. “These [laws] are essential to remove the chilling effects of foreign libel suits, serving as a deterrent to people contemplating suing American writers and publishers in Britain or other foreign jurisdictions,” Ehrenfeld wrote in the Guardian last week. Critics also claim that UK courts have an excessively lax approach to jurisdiction, allowing claimants including Russian oligarchs and Saudi businessmen to sue foreign writers at London’s High Court over material which is barely distributed or read in the UK. “What happened to me did not occur in a dark backwater of totalitarian repression like Saudi Arabia or North Korea, but in the UK,” Ehrenfeld said. “The British court accepted jurisdiction because 23 copies of Funding Evil were purchased in Britain via the internet, and a chapter of the book was posted on the internet.”
The initiatives of American legislators are seen as embarrassing to the UK and its reputation for upholding free speech. “There is no other western country whose libel laws come anywhere close to ours,” says John Kampfner, chair of the freedom of expression group Index on Censorship, which has been campaigning for reform of the UK’s libel laws. “We are now a laughing stock around the world, particularly in the United States.” Catching a chill “It is unbelievable that the state legislators of New York and Illinois, and Congress itself, are having to pass bills to stop British courts seeking to fine and punish American journalists and writers,” says Denis MacShane MP, who recently led a debate on libel tourism in the House of Commons. “It is grotesquely embarrassing for Britain and makes a mockery of the idea that Britain is a protector of core democratic freedoms.”
Despite indications that the current sitting of the parliamentary committee on culture, media and sport will address the problem as it conducts a wide-ranging inquiry into media law, there are concerns the BBC is a high-profile casualty of the “chilling effect” taking hold of investigative journalism across the spectrum in the UK. “Newspapers [and other media organisations] – however well-funded and even when they know they are in the right – can be loath to invest a huge amount of money and time [in fighting a libel case],” Kampfner says. In difficult economic times, the potential for damage to the bottom line becomes more widespread. “It’s not just journalists – NGOs are suffering greatly from this,” he adds. “As part of their work they are investigating torture allegations, corruption allegations, other acts of state power as part of their reports. They then get threatened via the British legal system about their legitimate work. Libel tourism is one of the most – although not the only – pernicious aspect of British libel laws as currently constituted.”
guardian.co.uk ﾩ Guardian News and Media Limited 2009