The fact that England has become an international centre for libel litigation underlines the need for urgent reform There has never been such momentum for reforming English libel law. The impetus has come, to our shame, from overseas. Neither our own legislators or even our leading media organisations have, until now, seen the need to campaign for reform.
The first push for change began in the United States, following the academic Rachel Ehrenfeld’s campaign to protect American citizens from libel actions in English courts. Ehrenfeld had been sued by the litigious Saudi businessman Khalid bin Mahfouz. Only 23 copies of her book Funding Evil were available in the UK, but it was enough for bin Mahfouz to bring an action against Ehrenfeld in London.
As a result of Ehrenfeld’s lobbying, Florida, Illinois, New York and California have introduced legislation protecting Americans from legal action in our courts and a bill is now making its way through Congress. The American media has also submitted evidence to the Commons select committee inquiry into libel stating that US newspapers “are actively considering abandoning the supply of the 200 odd copies they make available for sale in London, they can no longer risk losing millions of dollars in libel actions which they would never face under US law.”
The peculiarity of our archaic laws, where a gentleman’s reputation still enjoys a sanctity that may trump the right to free speech, is now an international embarrassment. Oligarchs and businessmen, from Ukraine to Saudi Arabia, come to our courts to silence opposition and criticism because they know that the law in this country is weighted in favour of the claimant. English PEN and Index on Censorship have been talking to journalists, editors, lawyers, NGOs, bloggers and publishers over the past year to canvass their views on the impact of English libel law on free speech. Today we’re publishing our recommendations for reform.
Not only do we believe that they will restore the balance between free speech and reputation, they will bring our libel laws up to date. Libel law is still predicated on a 19th-century model of publication that pre-dates the revolutions in mass communication. It is an anomaly that has become all the more acute since the arrival of the internet and reform is now urgently overdue. The arguments for libel reform – and the resistance to it – tend to be discussed solely with reference to the traditional media. The culture, media and sport inquiry into libel and privacy, which looks likely to report next month, is focused on press freedom. Almost all of its witnesses are from the media industry.
But that is too narrow a focus for the debate. We are all at risk, as never before, of falling foul of libel law. Anyone who blogs or runs a website may be liable (as, for example, the Sheffield Wednesday supporters’ forum Owlstalk found when the club’s directors took umbrage at comments on the site); NGOs exposing corruption and crimes against humanity may find themselves exposed to a libel suit in an English court, as happened with Human Rights Watch following a report on the Rwandan genocide; book publishers may have to withdraw and even pulp novels when threatened with a libel action.
That is why this is a campaign that affects us all. In an age when the possibilities of receiving and imparting information have never been greater, there has never been a more pressing need for enlightened reform that restores the balance to freedom of expression.
guardian.co.uk ﾩ Guardian News and Media Limited 2009