Taking Away The Welcome Mat
By The Economist | by From The Economist print edition
Wednesday, December 30th, 2009 @ 11:29PM
MOST tourists come to Britain for the palaces, the pubs and the history. But a few come to take advantage of England’s ferociously claimant-friendly libel laws (Scotland’s are different). A string of cases in which plaintiffs with tenuous links to England have taken advantage of these rules has fuelled worries about legal “forum shopping”.
Belatedly, politicians are taking notice. On December 27th Jack Straw, the justice secretary, said that a hurriedly assembled (but as yet unnamed) panel of lawyers, academics and newspaper editors will meet to ponder improvements, with a plan for reform due by March. Libel tourism will be top of the list for change.
The most famous example is the case of Rachel Ehrenfeld, an American who wrote a book about the funding of Islamic terrorism. It sold a mere 23 copies in Britain, over the internet. But a Saudi businessman sued her in a London court and was awarded over $100,000 ($160,000).
In other cases brought in England, a Ukrainian tycoon silenced a Ukraine-based paper and won a case against a website that published only in Ukrainian; and Kaupthing, an Icelandic bank, won damages from Ekstra Bladet, a Danish newspaper. Such legal expansiveness worries countries with more robust traditions of free speech.
Several American states have passed or are pondering laws protecting their citizens from English libel judgments. Some sort of proportionality test seems likely, whereby English courts can assert jurisdiction only if a significant share of sales (10% is one figure being bandied about) are in England. That would make forum shopping harder, although it would not strengthen the position of defendants themselves in cases that do make it to trial. It is not just journalists and writers who are unhappy.
Scientists worry that claimant-friendly rules are stifling the criticism on which science depends. Henrik Thomsen, a Danish academic, is being sued by GE Healthcare after he suggested at a conference in Oxford that one of the company’s drugs might have potentially fatal side-effects. Peter Wilmshurst, a British cardiologist, is facing a lawsuit from an American firm, NMT Medical, over comments he made on an American website about a study into using heart implants to treat migraines.
The British Chiropractic Association is suing Simon Singh, a popular-science author, after he wrote in a newspaper that chiropractic remedies are “bogus”. A separate government inquiry is looking into the question of costs, and will also report in 2010. Defending a libel action can be so costly that many defendants settle immediately or simply do not publish at all. Mr Singh has spent over $100,000 defending himself so far. Index on Censorship, a pressure group, has suggested a $10,000 cap on damages to reduce the advantages enjoyed by the rich.
Libel reform may seem an obscure subject for an unpopular government to pursue with a general election looming. Yet an internet-led campaign for change has gained thousands of signatures, plus support from Richard Dawkins, a prominent science writer, and Lord Rees, the head of the Royal Society. And although few voters are interested in the ins and outs of libel law, the newspaper and television editors who provide those voters with their news most certainly are.