Rotten Laws That Strangle Free Speech
By The Sunday Times, UK | by Comment, Leading Articles
Sunday, November 15th, 2009 @ 12:39AM
Imagine a country in which citizens are barred from reading American newspapers and books and from accessing international websites. Scientists and writers are hauled before the courts and threatened with massive damages even if their supposed crime was committed elsewhere and even if they were expressing legitimate views. It sounds like a repressive totalitarian regime but it is modern-day Britain. And it is all because of our absurd libel laws and the way they are being interpreted by the courts.
The High Court in London is where the world comes to seek redress for libel. Cases are being brought here when the original defamation occurred thousands of miles away. That is why foreign publishers such as The New York Times and The Washington Post are considering suspending publication in Britain and blocking access to their websites. If there has been no publication in Britain, there can have been no libel and the publishers will not be exposed to huge damages. Even that may not stop it.
Rachel Ehrenfeld, an American academic, published her book, Funding Evil: How Terrorism Is Financed and How to Stop It, in America. Only 23 copies were sold in Britain, over the internet. In no rational meaning of the word could the book be said to have been published in Britain. Yet on that flimsy basis a wealthy Saudi businessman sued in London and was awarded $130,000 in damages and costs. In response, the New York state governor has signed legislation giving New Yorkers “greater protection against libel judgments in countries whose laws are inconsistent with the freedom of speech granted by the US constitution.” Several US states enable victims of this “libel tourism” to counter-sue for harassment. It is shaming for this country that Congress is considering a bill to protect Americans from the iniquities of British libel law.
This is not the only type of libel tourism. Peter Wilmshurst, a consultant cardiologist, is being sued in Britain by NMT Medical, an American medical technology company, for remarks he made in the United States that were reported by an American specialist publication. The case against him would have been thrown out in America.
Britain’s restrictions on freedom of speech are gaining notoriety. The United Nations human rights committee has said our libel laws discourage serious reporting on matters of legitimate public interest and prevent scholars and journalists from publishing. Sir Ken Macdonald, the former director of public prosecutions, said that “our law should be nurturing the free exchange of ideas. It should be protecting research and science … Unhappily, the government’s obvious reluctance to act has to be seen within a growing tendency to undermine free speech in recent years.”
This is not just a newspaper whingeing about libel. We accept that contentious stories must be justified and people have the right to defend their reputations. It is about inhibition of freedom of speech that nullifies debate and impoverishes the intellectual life of a country. Nor is it that difficult to rectify. One means is arbitration to avoid prohibitive costs; another is shifting the burden of proof from defendant to claimant or putting a cap on damages (although legal costs are often a bigger problem). Courts could reject cases in which less than 10% of a publication’s circulation or website’s traffic is in this country and introduce a robust public-interest defence into libel law. The High Court is turning into a giant cash machine for libel claimants and unscrupulous lawyers, and it is time it was stopped.
Copyright 2009 Times Newspapers Ltd.