Memorandum submitted by PEN
1. The right to freedom of expression is fundamental to democracy, the pursuit of knowledge and personal fulfilment. It is described in the Universal Declaration of Human Rights as 'the highest aspiration of the common people'. Without freedom of expression, we could neither hold power to account nor expose wrongdoing. This fundamental freedom underpins all other rights, none of which can be guaranteed unless abuses can safely be challenged in the public sphere by journalists, writers, think tanks, NGOs, charities and concerned individuals. For this reason, Article 10 of the European Convention on Human Rights (ECHR) - the right to freedom of expression - is treated with particular care by the European Court of Human Rights (ECtHR), and is further enhanced in UK law by Section 12 of the Human Rights Act 1998 (HRA), which requires the judiciary to consider carefully the impact of any ruling on freedom of expression.
1.1. Yet the public right to freedom of speech is not absolute. It is qualified by its interplay with interests including national security, public order and the rights of others. This balancing act has become the subject of extensive public and parliamentary debate where it touches on sensitive issues such as religion and extremist ideologies. Parliament has here passed legislation such as the Terrorism Act 2000 and the Racial and Religious Hatred Act 2006, both of which impose some limitations on freedom of expression in the interests of national security, public order or protecting the rights of others. Each Act has been the subject of intensive negotiation between the executive, legislative and judicial branches of the state, with considerable involvement from civil society.
1.2. This level of public debate has not yet been brought to bear on English libel law, which has long been seen as a threat to freedom of expression. In 1994, Geoffrey Bindman described libel law as 'seriously unbalanced and fundamentally flawed.' In the 2002 edition of their textbook, Media Law, Geoffrey Robertson and Andrew Nicol suggested that Article 10 required clarification in order to strengthen freedom of expression against libel claims. This clarification has not been forthcoming, yet libel law is posing a growing threat to freedom of expression in the United Kingdom and internationally. The United Nations Human Rights Committee has recently said that English libel law discourages 'critical media reporting on matters of serious public interest, adversely affecting the ability of scholars and journalists to publish their work.' The state legislatures of New York and Illinois have passed laws to protect their residents from the consequences of English libel suits, which they see as a threat to their First Amendment rights. The United States Congress has now passed similar legislation (Bill HR 6146), to prohibit recognition and enforcement of foreign defamation judgments, in order to 'protect the right to freedom of speech under the first amendment to the Constitution of the United States from the potentially weakening effects of foreign judgments concerning defamation.' The Senate is considering a similar measure. Thus the national embarrassment of English libel law is becoming an international problem. Moreover, the advent of the internet creates the danger of 'libel tourism', whereby - according to the UN Human Rights Committee - 'a State party's unduly restrictive libel law will affect freedom of expression world-wide on matters of valid public interest.'
1.3. In order to facilitate public debate on this issue, English PEN and Index on Censorship are running a joint inquiry into libel law. Index on Censorship promotes the public understanding of freedom of expression through its charitable arm, Writers and Scholars Educational Trust (number 3250023), whilst English PEN is a registered charity (number 1125610), with the object of promoting the human rights of writers, authors, editors, publishers and other persons similarly engaged throughout the world. The work of both organisations is international in scope. We are concerned by the chilling effect of libel law on British citizens and international defendants of English libel suits, and by the wider impact of this law on freedom of expression globally. We appreciate the need to balance freedom of expression against other rights and interests. However, we believe that this balance has been lost in libel law, and we therefore welcome this inquiry by the Committee. We hope that the Committee will bear in mind the international impact of English libel law when it considers the evidence placed before it, for the balance which is struck here will directly and indirectly affect the rights of others around the world.
2. Our research indicates that there are three respects in which libel law creates a chilling effect: (a) the burden of proof is weighted against the defendant; (b) the potential costs involved are prohibitive; and (c) the existing law does not reflect the nature of internet publication. Each factor in isolation poses considerable problems. In conjunction, they have led to the birth of 'libel tourism', whereby English courts are hearing cases with little relevance in this jurisdiction.
2.1. The burden of proof in English libel law is weighted heavily against the defendant, who is required to prove the truth of any factual allegations, whereas the claimant is only asked to show that the publication is defamatory of them, and that the defendant is responsible for its publication. This places defendants under the obligation (unique in English law) of disproving their guilt, whilst claimants are not required to prove that the libel is either harmful or untruthful. This imbalance dates from the antiquated presumption in libel law that a gentleman is blameless, and that any allegation of misconduct is therefore likely to be untrue or dishonest and bound to damage their reputation. Section 12 of the Human Rights Act creates a public interest defence, which should reverse this presumption in the case of figures in whom there is a reasonable public interest. However, this defence has been unevenly treated by the courts. Similarly, the creation of qualified privilege in Reynolds v Times Newspapers, which promised the media greater freedom in reporting allegations of public interest, has failed to correct this imbalance in the burden of proof. Without leadership from Parliament, the courts alone will be unable to find a better balance between freedom of expression and the protection of reputation. The burden of proof in libel law makes the defendant guilty until proven innocent.
2.2. The costs of bringing a case are considerable; the costs of losing a case can be crippling, partly as a result of the disproportionate use of Conditional Fee Agreements. These can see lawyers imposing an uplift of 100% on fees of £350-£500 per hour if their claim is successful. The risk of such costs is too great for many potential defendants to bear. Lord Carswell has said that the so-called success fees 'constitute a "chill factor"'. Coupled with the difficulty of guaranteeing success in a libel trial, these financial considerations deter many potential defendants with truth and public interest on their side from bringing their cases to court. These costs deter anyone of limited means, such as charities, NGOs, regional newspapers, small magazines, publishers and individual writers from defending a libel suit. English libel law thereby breaches both Article 10 and Article 6 (the right of access to the courts) of the ECHR. It has been shown that the average costs of libel action in England and Wales are an astonishing 140 times higher than the European average. This makes the law unaffordable to all but the wealthiest defendants. The unavailability of legal aid in libel litigation further exacerbates this problem in cases where there is no alternative to the courts for the resolution of disputes. The excessive costs of a libel action have put freedom of expression up for sale.
2.3. The internet has radically expanded the jurisdiction of English libel law. Now that books may be published on the internet, and bought and sold through online retailers, overseas authors and publishers are finding themselves within reach of the long arm of English law. Coupled with the unbalanced burden of proof and the high costs involved, this has created the phenomenon known as 'libel tourism', where wealthy claimants are using English law to silence criticism. Even where only a very small number of the book or article concerned have been bought or read in this country, English courts are still prepared to hear the case. At the same time, foreign claimants with only a minimal reputation to protect in this country are bringing libel suits against British-based authors, journalists and publishers in London, where they are confident of receiving a friendly but credible hearing. The control of online publication is a problem with which democratic states will grapple for many years to come. It will require considerable debate and much greater public understanding before Parliament legislates more generally in this area. In the meantime, however, Parliament could act to close this loophole which allows English libel law, with its low regard for freedom of expression, to chill the speech of citizens of other countries. Libel tourism contravenes one of the key principles of human rights law, that individual states should set their own balance between freedom of expression and other concerns. The internet has sent the chilling effect of English libel law around the world.
3. There are three areas, outlined above, in which the protection of reputation puts freedom of expression at risk. How can we be sure that this risk is not justified by the need to protect our reputation? The right to freedom of expression is, after all, qualified in Article 10.2 of the ECHR by the need to protect the rights and reputations of others. However, this does not mean that the protection of reputation automatically trumps freedom of speech. The ECtHR has ruled that any exceptions to freedom of expression 'must be narrowly interpreted and the necessity for any restrictions must be convincingly established.' The ECtHR case law has established some important principles which must be met by any such restrictions on freedom of expression: these limits must be necessary in a democratic society; any redress must be proportionate; and the limits must be subject to the principle of legal certainty. The practice of libel law today fails all three of these tests, and - vide the United Nations Human Rights Committee - it is the responsibility of the state to correct this situation.
3.1. The degree of restraint which English libel law places on freedom of expression is not compatible with the needs of a democratic society. The law allows the wealthy to prevent publication of material which challenges them; but it does not offer similar protection to those without means. It allows individuals and corporations to prevent the publication of material which may well be in the public interest. Without a statutory public interest defence, there is in fact no way of establishing the significance of a particular libel. In this way, the law serves the private interest of groups and individuals, not the public interest. The limits which libel law places on public discourse are anti-democratic.
3.2. The penalties imposed by the courts through fines and costs can be crippling for individual writers, publishers and newspapers. The risk of incurring such penalties is deeply chilling. The financial penalties are not proportionate to the threat posed.
3.3. Further, the sheer complexity of English libel law acts as a deterrent to many publishers, authors and journalists. The Reynolds defence has rarely succeeded, because few newspapers have been able to meet the stringent requirements imposed by the House of Lords. The defence is too inflexible; whilst it creates the possibility of a qualified privilege defence, in practice this creates an added burden of proof for the defendant. The law leaves writers uncertain of the legality of their publication, and inclined to err on the side of caution. This confusing and unpredictable law creates a chilling effect which goes beyond the need for responsible journalism.
4. For these reasons, we believe that parliamentary action is now imperative, in order to provide essential guidance to the courts and the public on the proper balance between freedom of speech and the protection of reputation. English PEN and Index on Censorship are seeking the views of authors, journalists and publishers before making specific recommendations. However, we suggest the following areas for reform.
4.1. The burden of proof should be redistributed between claimant and defendant to ensure that the defendant is not treated as guilty until proven innocent; that the claimant has to prove harm; and that the defendant is able to mount an effective public interest defence, provided that the criteria of responsible journalism are met.
4.2. The excessive costs of libel law should be addressed with the utmost urgency. The use of Conditional Fee Agreements should be reined in. The availability of legal aid should be considered for both parties in libel suits. The capacity of the Press Complaints Commission to hear complaints and offer redress should be enhanced. The creation of a Libel Tribunal should be considered. It may be that penalties should be established with reference to the specific financial harm suffered by a claimant whose claim is upheld, and that it should be the duty of the claimant to prove this financial harm.
4.3. Any new legislation needs to close down the internet loophole that allows English courts to hear cases with only minimal relevance to the UK. This could be achieved by strengthening the requirement on the claimant to prove material damage to their reputation in this country. At present, English courts are providing overseas claimants with rulings that are both friendly and credible. This situation is not sustainable, as the comments of the ECtHR, the United States legislature and the United Nations Human Rights Committee have shown. If the English legal system is to retain its credibility it must drop its claimant-friendly attitude in libel litigation.
5. In conclusion, we urge the Committee to hold the importance of freedom of expression in mind throughout its inquiry. Rights such as freedom of expression 'were hard won, the product of hundreds of years of debate, struggle, bloodshed and war.' A balance between freedom of expression and the protection of reputation is not the same as a deadlock. A balance allows the state to recognise and uphold society's deep commitment to freedom of expression, whilst protecting the right to reputation. In the twenty-first century, the law should facilitate the free flow of information that is necessary in a democratic society that is increasingly driven by the knowledge economy. Parliament's job now is to reflect the radically changed nature of publication and reputation in the modern age with a law that allows authors, journalists, charities, NGOs and publishers in the UK and overseas to conduct their work and their lives in the confidence that they will not be censored or bankrupted by the financial muscle of powerful individuals or corporations, whilst offering proper protection to those whose reputations are unjustly or maliciously damaged. It is the responsibility of a democracy to set this balance democratically, and not to allow the legal industry to erode a cornerstone of human rights law.
 Geoffrey Bindman, Publish and be Damned: How Libel Laws Restrict Free Speech (London: The Guardian and Charter 88, 1994), [p. 4].
 Geoffrey Robertson and Andrew Nicol, Media Law, fourth edition (London: Penguin, 2002), p. 76.
 United Nations Human Rights Committee, Consideration of Reports Submitted by States Parties Under Article 40 of the Covenant (21 July, 2008), p. 7.
 Ibid, p. 7.
 Campbell v MGN Ltd. (No 2)  1 WLR p. 3410, ¶ 55.
 The Observer and The Guardian v United Kingdom (1991) 14 EHRR 153, 191, ¶ 59.