MPs should listen to the UN’s criticisms, before English courts become censorship enforcement agencies for wealthy litigants. “Oh would some power the giftie gie us, to see ourselves as others see us,” wrote Robert Burns in To a Louse. But democratically elected governments face incessant scrutiny. So it is unusual to see one exposing itself voluntarily to the glare of critical inspection. But that is what the British government did when it submitted its report to the United Nations’ committee on human rights under section 40 of the international covenant on civil and political rights. The committee’s conclusions offer insights that should intrigue all who care about freedom of speech. The UN is concerned that the application of the law of libel in English courts has “served to discourage critical media reporting on matters of serious public interest”. It is referring to the chilling effect of the phenomenon known as libel tourism, which has allowed powerful interests to obstruct the publication abroad of books and articles by suing for libel in English courts.
In 2004 the Saudi investment banker Khalid bin Mahfouz won a default defamation judgment in the high court against the American academic Rachel Ehrenfeld over allegations contained in her 2003 book Funding Evil: How Terrorism is Financed. At the time of the trial the book had sold only 23 copies in the UK. Ehrenfeld described the process of libel tourism exploited in that case as “a form of intellectual terrorism”. Her American lawyers called it part of the most important challenge to free speech in the past 50 years.
That same year another author, Craig Unger, had publication of his book House of Bush: House of Saud: The secret relationship between the world’s two most powerful dynasties, scrapped in the UK. His publishers were concerned that the Saudi Royal family would use British libel law to sue for damages. British lawyers and politicians have paid little attention to the points of principle at stake. They should wake up, not least because the internet now means that material published in one country can be deemed to be nigh universally available.
In these circumstances libel tourism has the potential to turn English courts into censorship enforcement agencies for litigants with secrets to hide and money to burn. It poses a wholly unacceptable threat to academic freedom and freedom of speech. The UN committee is also critical of the Official Secrets Act 1989 on the grounds that it can be used to prevent whistle-blowing by former public servants. The case of David Shayler, the former MI5 agent, is one such example. Shayler was sentenced to six months’ imprisonment under sections 1 and 4 of the act after writing about the activities of the security services in the Mail on Sunday.
The 1989 act was designed to improve the 1911 version which banned publication of details as arcane as the brand of crockery used in the Home Office unless its release was authorized. It is helpful to be reminded that the revised legislation remains potentially oppressive. There is no public interest defense for civil servants who leak information about what the government is doing in our name. The House of Lords confirmed this in the Shayler case. So, does Britain stand condemned as a haven for censorship, secrecy and oppression? The picture is not so stark. The failings highlighted by members of the UN committee were carefully identified for them by diligent British civil servants. Bravo ladies and gentlemen. And now that you have offered ministers the blessing Robert Burns prized, we journalists must do our duty to the public sphere by maintaining pressure on them to liberalize the law.
guardian.co.uk ﾩ Guardian News and Media Limited 2008