They call it the ‘small penis’ rule. Faced with the risk of libel actions, novelists endow any objectionable male character with a remarkably small penis. What man would claim in court that such a character was based on him?
This strategy is all very well for novelists, but it doesn’t help the journalists, publishers, non-fiction writers, bloggers and NGOs for whom libel law is no joke. They are facing a stream of libel threats in response to critical reporting on powerful individuals and corporations. The science writer Simon Singh is currently fighting a libel suit brought by the British Chiropractic Association after he described some of their claims for chiropractic remedies as lacking scientific credibility. Supporters of Sheffield Wednesday Football Club were recently sued by their own club after calling it ‘an embarrassing, pathetic, laughing stock’ – terms of endearment in the vocabulary of most football fans. Even Progress has been threatened with libel after questioning the democratic accountability of certain community ‘representatives’.
The use of libel law to silence public debate is a growing problem not only in the UK but also internationally, because of the cripplingly high costs (140 times the European average), the misplaced burden of proof and the legal anomaly which allows foreign claimants to bring cases against foreign defendants in London. It is time that Labour acknowledged that this is a social justice problem.
Over the last year, English PEN has been working with Index on Censorship on an inquiry into the impact of English libel law on freedom of expression. We discovered that libel tourism only occurs because, in English law, publication is defined as the point where a libel is read, not where it is produced. This bizarre rule dates from the 1849 Duke of Brunswick case in which the duke’s manservant travelled from Paris to London in order to purchase a 17-year-old journal in which the duke belatedly found himself to be defamed and consequently sued for libel. In the age of the internet, this rule means that the authors or editors of a book, newspaper or website published anywhere from the United States to Ukraine can be sued in London, so long as a few copies of the publication have been bought or downloaded in this jurisdiction.
In 2005, Rachel Ehrenfeld, an American academic, was sued in London by the Saudi billionaire Khalid bin Mahfouz after she published allegations that he was channelling money to al-Qaeda. Only 23 copies of Ehrenfeld’s book, Funding Evil, were sold via the internet to addresses in Britain, but the courts accepted jurisdiction, and awarded a judgment in default of ﾣ10,000 to Mahfouz and each of his two sons after Ehrenfeld refused to attend the trial. In order to protect Ehrenfeld from these damages, the New York state assembly passed the Libel Terrorism Protection Act, nicknamed ‘Rachel’s Law’, which declares foreign libel judgments unenforceable unless the foreign law grants the defendant the same level of free speech that they would enjoy in the US. Similar laws have now been passed in the states of Illinois, Florida and California, and the free speech protection bill 2009 is making its way through the US Congress.
Ehrenfeld has the joint backing of American liberals and conservatives, who are united in their support for the first amendment, which grants US citizens a fundamental right to freedom of speech. Writers in other countries are not so lucky. Over the last few years, our libel laws have been used to silence the critics of Saudi Arabian bankers accused of funding terrorism and multinational oil companies accused of dumping toxic waste. Such claimants bring these cases here because they can afford to do so (while their opponents cannot afford to defend themselves), and because the English law still enjoys an international credibility that is patently lacking in the legal systems of Sudan, Russia, Ukraine or Saudi Arabia.
This credibility cannot be sustained indefinitely. In July 2008, the United Nations human rights committee issued a damning critique of English libel law, which – it said – ‘has served to discourage critical media reporting on matters of serious public interest, adversely affecting the ability of scholars and journalists to publish their work’. This should be a source of embarrassment to any British government, particularly for the Labour government that introduced the Freedom of Information Act and the Human Rights Act. These two monumental pieces of legislation transformed the relationship between governors and governed in this country. Freedom of Information campaigners subsequently used the act to seek information about MPs’ expenses. To their shame, MPs voted to exempt themselves from the very legislation they had introduced. Even as recently as this year, MPs continued to resist full disclosure of their expenses claims. In the end, it was old-fashioned chequebook journalism that led to the revelations in the Daily Telegraph. Until the last moment, some MPs threatened journalists and campaigners with libel actions.
The Trafigura case has begun to change MPs’ attitude towards the law. When the Guardian sought to publish scientific research into the relationship between toxic waste dumped by the oil company Trafigura and the ill health of thousands of people in Ivory Coast, Trafigura took out an injunction at the high court. This injunction prevented both the original report and news of the injunction itself being published. It is one of a growing number of so-called ‘super-injunctions’, used to silence journalists. Trafigura’s lawyers, Carter-Ruck, even suggested that the injunction might prevent parliamentary debate and the reporting of parliament – in direct contravention of the Parliamentary Papers Act 1840 and the bill of rights. In the outcry that followed, the Labour MP Paul Farrelly described this as ‘the rule of lawyers, not the rule of law’.
There is a growing backlash against the use of libel law to protect the private interests of the few against the public interest of the many. The Liberal Democrats have committed themselves to libel reform as a policy objective. The Conservatives could well come down behind the reforms that were outlined recently in the Sunday Times, based on the recommendations published by Index on Censorship and English PEN in our report, Free Speech is Not for Sale (see www.libelreform.org). Unless Labour catches up with this growing momentum for reform, it risks finding itself on the wrong side of history. The party which benefited from the liberalisation of information and ideas at the end of the 19th century now appears to be supporting oligarchs and corporations who are using the law to shut down legitimate debate.
This has got to change. The distribution of information is as important in a knowledge economy as the distribution of material resources. A 21st century Labour party is one which acknowledges the collective value of information and ideas. It should be a party which places the public interest in the free flow of information before the private interest of powerful and censorious forces in society. Internationally, the promotion of free expression is still supposedly part of the ethical foreign policy which Robin Cook introduced. Domestically, Labour cannot continue to endorse a legal system which allows the powerful to threaten the powerless with financial ruin, simply for attempting to hold them to account.
Jonathan Heawood is director of English PEN and a member of Chelsea & Fulham CLP