House of Commons - Press standards, privacy and libel - Culture, Media and Sport Committee

Press standards, privacy and libel - Culture, Media and Sport Committee Contents

3 Libel and Press Freedom

114. In this section we discuss how the UK's libel laws operate in practice and the effect they have on press reporting. We consider important recent cases and developments since the 1996 Defamation Act, including the defence of 'responsible journalism', the Government's consultation on the issue of 'multiple publication' in the internet age and legislation to abolish criminal libel. We also examine the international context, including the controversy surrounding so-called 'libel tourism' or 'forum shopping'.

115. Throughout this discussion we remain mindful of the over-arching concerns about the costs of mounting and defending libel actions, and the 'chilling effect' this may have on press freedom. Such is the importance of these concerns, we specifically examine the subject of costs, including conditional fee arrangements and the 'offer of amends' procedure introduced by the 1996 Act, in the following section of this report.

116. We also recognise that the UK does not have a written constitution with a First Amendment protecting freedom of speech as the US does, nor in the foreseeable future is it likely to have one. Our recommendations in this section are therefore aimed at being practical and influencing the law as it stands in the UK.

The development of our libel laws

117. In an action for libel the claimant has to prove that the statement is defamatory, a term defined by Lord Atkin in 1936 thus: "A defamatory statement is one which injures the reputation of another by exposing him to hatred, contempt, or ridicule, or which tends to lower him in the esteem of right-thinking members of society."[114] The claimant must also prove that the statement refers to him or her and that it was published to a third party. Significantly, the claimant does not have to prove the statement is false. The burden of proof now shifts to the defendant, who must prove that the defamation was justified by the facts - i.e. that it was substantially true - or else employ another defence, such as that it was fair comment or that the statements concerned attract privilege (see paragraphs 130 to 145).

118. A claimant - be it an individual or company - does not have to prove actual damage to reputation, nor financial loss. Some damage is presumed to have been suffered. It is, however, open to a claimant to seek 'special damages', in order to recover actual financial loss.

119. Libel actions are heard in the High Court, with libel being one of the few areas of civil litigation with the right to a jury trial. For many years libel in England and Wales could also be a criminal matter, but this had become extremely rare and in November 2009 criminal libel was removed from the statute books.

120. The law in this area has largely developed case by case and Parliament has been reluctant to legislate, but the Defamation Act 1952 made a number of changes, including an 'offer of amends' procedure where the defamatory statement was 'unintentional'.[115] An offer of amends procedure allows for a swift apology without trial. If the offer is not accepted, then the fact the offer was made may mitigate any damages. Aiming to encourage "swift and less costly disposal of defamation claims",[116] the Defamation Act 1996 extended the availability of the offer of amends procedure to all defamatory statements. It also introduced summary disposal of claim where judges could find 'no realistic prospect of success'.[117] The Act also created an 'innocent publisher' defence, giving protection to internet service providers.[118]

121. According to Ian Hislop, editor of Private Eye, the Defamation Act 1996, together with the Woolf reforms on civil litigation, have benefited the media:

119

122. Damages in libel cases are much lower than in the past. Until the mid-1990s juries in libel trials were free to set the level of damages and this resulted in some very high payouts. In 1989, the wife of Peter Sutcliffe, the 'Yorkshire Ripper', was awarded £600,000 against Private Eye, though that figure was later reduced by the Court of Appeal, which described it as 'so unreasonable as to be divorced from reality'. In 1995, the Court of Appeal held that juries in libel trials should be given approximate upper and lower limits for financial awards by judges during the summing up.[120] The highest award in recent years is £200,000, which was awarded in 2002 to two kindergarten teachers falsely accused by a local council of having sexually abused children. The judgment noted that the award was "now generally recognised to be the maximum amount for compensatory damages in libel proceedings".[121]

123. Details of out-of-court settlements are frequently not disclosed but it is clear they can be higher than this. Robert Murat is reported to have received £600,000 from 11 newspapers over allegations that he had been involved in the disappearance of Madeleine McCann.[122] It was reported that Madeleine McCann's parents received a similar amount from Express Newspapers.

124. Libel claimants may recover exemplary damages where the court awards 'punitive' rather than 'compensatory' damages. These are rarely awarded since proof of guilty knowledge on the part of the defendant is required, coupled with the motive of making money out of the libels.

Bringing and defending a libel action in the UK

EARLY HEARINGS ON MEANING

125. Establishing whether the meaning of a word or phrase is defamatory is frequently at the heart of the libel process. A statement can be defamatory in two ways. The 'natural and ordinary' meaning of the words may make it so, or it may be defamatory by innuendo, meaning that readers with special knowledge would interpret it that way. When bringing a case, the claimant is required to set out the words complained of and the defamatory meaning he or she believes they convey. If the defendant disputes this, the task of determining whether the words bore the meaning alleged by the claimant falls to a jury at trial, unless the parties have agreed to its determination by a judge.

126. Resolving the issue of meaning can take a long time and be expensive. Alan Rusbridger, editor of the Guardian, told us that one of the changes to the current framework that would be "top of his list" was "early ruling[s] on meaning which could be taken by judges not juries".[123]

127. In evidence to us Sir Anthony Clarke, the then Master of the Rolls, acknowledged that preliminary rulings on meanings reduced costs and noted that judges have case management powers to make such rulings:

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128. Rulings on meaning, however, may clearly not satisfy all defendants. We have received evidence,[125] for example, on the case of the science writer Simon Singh, who is being sued for libel by the British Chiropractic Association (BCA) over an article published in 2008, which was critical of treatments dispensed by BCA members. In a preliminary hearing on meaning in May 2009, Mr Justice Eady ruled that the wording could be held to imply the BCA was being consciously dishonest. Mr Singh denies he intended this and the Court of Appeal has since given him permission to contest the ruling - a lengthy process which has so far cost Mr Singh more than £100,000.[126]

129. We have received limited evidence on hearings on meaning and the extent to which they are used. We agree, however, that any measures to provide more certainty at an earlier stage, and which cut the enormous costs of libel cases in the UK, should be pursued more vigorously. We urge the Government, therefore, to look closely at this aspect of procedure in its present review of the costs and operation of UK libel laws.

DEFENDING LIBEL ACTIONS - JUSTIFICATION AND THE BURDEN OF PROOF

130. The defence of justification requires the defendant to prove that the words complained of were true or substantially true. Whether or not this is difficult, at law it is likely to be complex, time-consuming and expensive. It will frequently require a full trial as well as preliminary hearings on issues such as disclosure and evidence. A recent example was the case brought by Richard Desmond, proprietor of Express Newspapers, against Tom Bower, the author of a 2006 biography of Conrad Black, former proprietor of the Telegraph Media Group.[127] Mr Desmond's claim focused on passages of the book which described his relationship with Mr Black. Mr Bower pleaded justification and his plea was upheld, but only after a full jury trial lasting three weeks Unusually, the Bower case featured two expensive appeals in mid-trial against rulings by the judge - Mr Justice Eady again - over admissibility of evidence. Each time, the author claimed key, relevant evidence about Mr Desmond's reputation was being excluded. On both occasions the Court of Appeal upheld Mr Bower's claim. It was also severely critical of Mr Justice Eady's rulings which - Lord Justice Hooper said during the second appeal - "would risk the possibility of a miscarriage of justice."[128]

131. A particular concern we heard from media witnesses in the UK and lawyers and media representatives we met in America was the requirement that the defendant in a defamation case bears the burden of proving the truth of the allegations sued on. In oral evidence to us, Tom Crone, legal manager for News Group Newspapers, said:

Sun

News of the World

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132. Alan Rusbridger gave us two examples where the burden of proof had been difficult or impossible to discharge:

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133. This proposal is not new, and naturally meets the response that newspapers publishing allegations should have to hand good evidence that those allegations are correct. In 1999, in Steel v McDonald's, the Court of Appeal rejected the argument that Article 10 of the ECHR required that the burden of proof should be reversed when a defence of justification had been entered, a finding that was upheld on appeal to the European Court of Human Rights. We discuss McDonald's and the more recent Tesco case, to which the editor of the Guardian referred, in more detail in the section 'Corporations and defamation' below.

134. One significant difficulty in reversing the burden of proof in defamation cases is that it would often require claimants to prove a negative. A pertinent example is that of Kate and Gerry McCann, libelled repeatedly by the press, who would have been required, under a reversed burden, to prove that they had not allowed harm to come to their daughter.

135. We recognise the difficulties with the whole burden of proof being placed on the defendant but believe, on balance, that in the interests of natural justice, defendants should be required to prove the truth of their allegations. We are concerned, however, to see cases where that burden becomes overly onerous. We make some recommendations in this Report regarding the defence of 'responsible journalism' and the burden of proof on companies suing for defamation, which may level the playing field and assist publication in the public interest. We also urge the Government, however, to examine this aspect of the operation of the UK's libel laws carefully, including how the courts might better require claimants to make reasonable disclosures of evidence, without increasing costs even further through expensive appeals.

136. The Bower case also highlights concerns which arise when judges exclude evidence which prevents a jury being presented with a rounded picture, or too narrow a view of the thrust of an article. This aspect of the operation of the libel laws also needs examination.

FAIR COMMENT

137. A comment or expression of opinion, based upon (true) facts, made in good faith and without malice can be protected from libel. It is distinct from justification because the defendant is commenting on facts rather than claiming the facts to be true. A claimant can show malice if the commentator did not genuinely hold the opinion expressed.

138. The current case involving the scientist and writer Simon Singh originally involved a comment piece by him.[131] We have also received written evidence from Sense about Science, a charitable trust, that the law is stifling debate in the scientific and medical community about new drugs and treatments.[132]

139. In evidence, Ben Goldacre also told us of his experience:

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140. In other jurisdictions, the defence of fair comment is called 'comment' or 'honest comment', and this is a better reflection of the actual defence because the question is not whether the comment was fair or true, merely that it was a comment made without malice based on some true facts.

141. Much of the recent publicity given to concerns of the medical and science community about the harmful effects of UK libel laws on their ability to comment has followed the court rulings to date in the Simon Singh case and media coverage of the cases of the British cardiologist Peter Wilmshurst and the Danish radiologist Henrik Thomson, who have faced action from overseas commercial interests.

142. We look forward, clearly, to the outcome of the important Simon Singh case. Even from the limited evidence we have received, we believe that the fears of the medical and science community are well-founded, particularly in the internet age and with the growth of 'libel tourism'. We urge the Government, therefore, to take account of these concerns in a review of the country's libel laws, in particular the issue of fair comment in academic peer-reviewed publications.

PRIVILEGE

143. The law recognises that there are circumstances in which it is in the public interest to permit greater freedom of speech. It is a defence to a libel claim if the publication took place on a privileged occasion. The privilege may be protected from a libel action either by absolute privilege, which is a complete bar to libel actions, or qualified privilege, which protects the statement so long as it was published without malice.

144. Qualified privilege exists 'for the common convenience and welfare of society because the law accepts that there are occasions when persons should be at liberty to express themselves freely even when in doing so a third party is defamed'.[134] It covers fair and accurate reporting of Parliament, legal proceedings, organisations of the European Union and other matters set out in Schedule 1 of the Defamation Act 1996. It is also held to protect freedom of speech in specific circumstances under the common law 'responsible journalism' defence to a claim in libel.

145. In the case of qualified privilege, malice may consist in either awareness of or recklessness as to the untruth of the statement; a dominant improper motive in making a statement; or misuse of the occasion for which privilege exists.

THE 'RESPONSIBLE JOURNALISM' DEFENCE

146. The 'responsible journalism' defence emerged during the case of Reynolds v Times Newspapers[135] in 1999, when the House of Lords held that journalists making statements that were subsequently found to be defamatory and untrue were protected in law if the story had been researched and presented professionally and the subject matter was in the public interest. The purpose of introducing this defence was to "enable the court to give appropriate weight, in today's conditions, to the importance of freedom of expression by the media on all matters of public concern".[136]

147. In his speech in Reynolds, Lord Nicholls set out 10 guidelines which, depending on the circumstances, the courts could use to determine whether the defence applied:[137]

Ø  The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true.
Ø  The nature of the information, and the extent to which the subject-matter is a matter of public concern.
Ø  The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories.
Ø  The steps taken to verify the information.
Ø  The status of the information. The allegation may have already been the subject of an investigation which commands respect.
Ø  The urgency of the matter. News is often a perishable commodity.
Ø  Whether comment was sought from the claimant. He may have information others do not possess or have not disclosed. An approach to the claimant will not always be necessary.
Ø  Whether the article contained the gist of the claimant's side of the story.
Ø  The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact.
Ø  The circumstances of the publication, including the timing.

148. Lord Nicholls stated that the list should not be seen as exhaustive, or as replacing the role of the jury (if the case was a jury trial) in establishing the facts. He expressed the hope that "over time, a valuable corpus of case law will be built up".[138]

149. Seven years later, in Jameel v Wall Street Journal, the House of Lords had an opportunity to consider the effectiveness of the responsible journalism defence.[139] Lord Hoffmann commented on the difficulties of applying it in practice:

Reynolds

Bonnick

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150. The law lords concluded that the lower courts had been interpreting the guidelines too strictly, and effectively broadened the defence by explicitly stating that the 'ten matters' were guidelines and not hurdles which had to be overcome in turn.[141] In 2007, in the case of Charman v Orion Publishing Group Ltd,[142] the Reynolds defence was successfully used to cover a book, when the Court of Appeal dismissed a libel suit brought by a former police officer over a book Bent Coppers - The Inside Story of Scotland Yard's Battle Against Police Corruption by journalist, Graeme McLagan.

151. We have received evidence that despite the widening of the defence through the Jameel judgment, it is still difficult for the press to rely on it in practice. Marcus Partington of the Media Lawyers Association complained of an inflexibility amongst judges when applying what was intended to be a flexible test, fitted to circumstance:

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152. Keith Mathieson of Reynolds Porter Chamberlain LLP, which normally takes cases for defendants, cited cost as a barrier to using the defence:

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153. The costs involved in the defence mean that defendants have to weigh up the potential expenditure involved in fighting a case, and the further risk of possibly losing, against the inevitably lower cost of settling a case. Mark Stephens, of Stephens Finer Innocent, explained to us that this can be a particular consideration for NGOs and other not-for-profit organisations:

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154. We heard that, to be in a position to rely upon the responsible journalism defence, organisations must ensure that their staff are aware of the elements involved, which costs both time and money. Charmian Gooch of Global Witness told us that awareness of the defence is integral to the training of its staff: "Trying to incorporate Reynolds and an awareness of Reynolds in all the stages of the research, and thinking about a report, briefing document or a press release, every single point of publication, is crucial."[146]

155. Alan Rusbridger told us that, while his paper was able to incorporate the requirements of the responsible journalism defence into its investigative journalism, he doubted that local papers would have the resources:

Reynolds

Leicester Mercury

East Anglian Daily Times

Reynolds."

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156. It is noteworthy, however, that the newspaper did not deploy the Reynolds defence in the libel suit launched by Tesco, to which we return later in this section.

157. The responsible journalism defence was never intended as a general shield to protect a free press. It will always be a defence of last resort, first because it will only be used by defendants who are unable to prove that their facts are correct, and second because it transfers scrutiny to the journalistic process. As Keith Mathieson told us, "it shifts the emphasis of the case from the truth or otherwise of the allegations that are being sued upon to the conduct of the journalist".[148]

158. Mr Partington warned of the distorting tendency of hindsight: "There is criticism afterwards: 'Oh, well, you could have made that telephone call; or you should've looked at that', rather than actually examining what the journalist did and being slightly looser about the ten tests."[149] However Rod Christie-Miller, who normally acts for claimants, did not agree that judges applied the Reynolds guidelines too strictly:

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159. The National Union of Journalists (NUJ) told us that it welcomed the development of the responsible journalism defence: "These standards are those the union expects from its members - checking information, affording a right to comment and so on. They also effectively set a "public interest" criterion that is also welcome."[151] Roy Greenslade agreed:

Reynolds

George Galloway v The Daily Telegraph

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160. Whether journalists on UK newspapers routinely check facts to the degree required to enable the use of the responsible journalism defence is another concern. On major investigations relating to matters of public interest, reporters, sub-editors and senior editorial staff may well do their utmost to verify facts, particularly when they know the subject has the resources to mount a libel action. However, fact-checking of the kind found at many American periodicals - a routine process, carried out independently of the reporters - is not the norm in the UK.[153]

161. We appreciate the difficulties, and costs, to date in running a Reynolds defence have meant that it has not often been used in cases which have actually reached court. Nevertheless, we endorse the development of a 'responsible journalism' defence by the courts. We particularly welcome the House of Lords judgment in Jameel which emphasises the need for flexibility and, in our view, the realistic approach the courts must bring to consideration of the defence so that it appropriately protects the media's freedom of expression. However, we are concerned that the defence remains costly and therefore inaccessible to publishers with poor financial resources. We will be making a number of recommendations on costs which we intend should ensure access to this defence in appropriate cases.

162. We are also concerned that, partly because of the lack of certainty of a Reynolds defence, many cases have to be settled before they come to court, and that as a result there are few opportunities for a body of case law based on Lord Hoffman's judgment in Jameel to be developed. Indeed, it may take decades and we are of the view that the problem is more urgent than that, especially given the challenges facing smaller regional newspaper groups.

163. The desirability of affording greater protection to genuinely responsible journalism begs the question of whether the law should be amended to put the Reynolds defence, or an expanded version of it, on a statutory footing, perhaps through an amendment to the 1996 Defamation Act. However, there is a risk of unforeseen consequences. It could be maintained that Reynolds/Jameel applied more flexibly is sufficient and we are concerned that codifying the defence and the 'public interest' in law may in itself introduce rigidities or make for less accurate reporting. However it is our opinion that there is potential for a statutory responsible journalism defence to protect serious, investigative journalism and the important work undertaken by NGOs. We recommend that the Government launches a detailed consultation over potentially putting such a defence, currently available in common law, on a statutory footing. We welcome consultations already launched by the Ministry of Justice in the field of media law. Such a further exercise will provide an opportunity to gain more clarity and show the Government is serious about protecting responsible journalism and investigations by the media, authors and NGOs in the public interest.

Corporations and defamation

164. Under the law of England and Wales, trading companies which have reputations in this country may sue for defamation and recover general damages. Since 1993, however, following the case of Derbyshire County Council v Times Newspaper Ltd,[154] local authorities, trades unions and unincorporated bodies cannot. The UK position contrasts strongly with the US, where since the decision in New York Times v Sullivan in 1964, constitutional free speech protections have made it very difficult for companies - as 'public figures' under US law - to succeed in defamation cases.

165. The question of whether companies should continue to enjoy this right in the UK was raised in the case of McDonald's Restaurants v Morris & Steel, commonly known as the McLibel case. In 1990, the fast-food chain sued two environmental protesters, Helen Steel and David Morris, over allegations made in leaflets distributed mainly outside McDonald's restaurants. McDonald's at the time was a company known to have frequent recourse to libel law. Ms Steel and Mr Morris conducted their own defence, winning in part, but only after nine years of legal proceedings. McDonald's was awarded £40,000 in damages, which it did not claim.

166. This very unequal legal contest prompted concern, and in judgment the Court of Appeal observed that a submission that corporations should lose their right to sue for libel had 'some substance', though it said this would be a matter for Parliament to address.[155]

167. Such a step has been taken elsewhere. In 2005, the federal Government in Australia passed legislation preventing corporations (other than not-for-profit organisations or small businesses of fewer than 10 people) from suing for defamation. This was in response to concerns that large companies could stifle legitimate public debate by initiating defamation actions.[156]

168. A major, recent case in the UK was the action by Tesco against the Guardian in 2008, in which the supermarket sued for libel - and the editor personally for 'malicious falsehood' - after the newspaper claimed it was avoiding corporation tax through complex offshore property deals.

169. It turned out that Tesco's dealings did aim to avoid tax, but a different one - stamp duty land tax - and for far less than alleged. Subsequent investigations by Private Eye, however, found that Tesco had offshore schemes to reduce corporation tax, too.

170. Before the article, Tesco declined to meet the reporters and gave limited written responses. In the circumstances, the newspaper misunderstood the purpose behind the deals, but the story's thrust - regarding tax avoidance - was correct. In May, the Guardian nonetheless issued an extensive apology and explanation of its inaccuracies.[157]

171. Tesco, advised by Carter-Ruck, carried on, however, notwithstanding an 'offer of amends' from the Guardian (a subject we discuss more fully in the next section on 'Costs'). In July, in a two-day case management hearing before Mr Justice Eady in the High Court, Tesco tried to exclude the Private Eye evidence and keep the 'offer of amends' on the table, while it pursued the action. The judge ruled against them on both points and also struck out the action for 'malicious falsehood'.[158] Two months later, Tesco agreed to a further correction and apology, and a settlement was reached out-of-court. By then, the costs had become enormous, dwarfing any damages.[159]

172. In this case, Mr Rusbridger argued - quoting the landmark American case Sullivan v New York Times - that the Guardian was guilty of 'erroneous statements honestly made', but was not afforded the same protections as in the US. Nor was it helped by Tesco's lack of disclosure, while it bore the whole burden of proof. "In all other jurisdictions I know of the burden of proof operates the other way, and quite well,"[160] he told us.

173. In evidence to us, Jonathan Coad of Swan Turton solicitors, on the other hand, did not support restricting or removing the right of companies to sue for libel.[161] He told us:

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174. The Lord Chancellor also agreed that companies needed to be able to sue for defamation to protect their reputations. He told us: "Bodies corporate do have reputations and on their reputations depend the livelihoods of, in large corporations, thousands of people and their share price, in which your pension fund or mine might be invested."[163]

175. There are certainly practical difficulties to be reckoned with. Global Witness noted that it had experience of situations where repressive state authorities which were unable to sue made use of an individual as a 'front person' to act for them in defamation litigation.[164] Clearly corporations wishing to exploit libel laws to stifle criticism could use the same technique.

176. There is no doubt that the effect on a company of losing its business reputation can be devastating, but it is also the case that companies often have means, which are not normally available to individuals, to counter falsehoods and unfounded criticism through publicity campaigns. Further, individuals at companies, large or small, who consider themselves defamed can also sue, funded by their employers, as they still can at local authorities in the UK.

177. It is clear that a mismatch of resources in a libel action, for example between a large corporation for which money may be no object and a small newspaper or NGO, has already led to a stifling effect on freedom of expression.

178. We hope that Government measures to reduce costs and to speed up libel litigation will help address the mismatch in resources between wealthy corporations and impecunious defendants, along with our recommendations to widen and strengthen the application of the responsible journalism defence. Given the reaffirmation by the House of Lords in Jameel of the rights of companies to sue in defamation, the law could only be changed by statute, if Parliament felt it desirable to address potential abuses of libel laws by big corporations. One possible way of addressing the issue might be to introduce a new category of tort entitled "corporate defamation" which would require a corporation to prove actual damage to its business before an action could be brought. Alternatively, corporations could be forced to rely on the existing tort of malicious falsehood where damage needs to be shown and malice or recklessness proved. We also consider that it would be fairer to reverse the general burden of proof in such cases. Given the seriousness of this issue, we recommend that the Government examines closely the law as it now stands, looking also at how it operates in Australia, and consults widely on the possibility and desirability of introducing such changes in the UK through an amendment to the Defamation Act 1996.

Jurisdiction

179. We now turn to consider matters relating to jurisdiction and allegations that the UK courts are being used inappropriately by so-called 'libel tourists' or 'forum shoppers' - claimants who search for the most favourable rather than the most appropriate country in which to pursue a case.

180. Some procedures are in place to prevent those with no good reason for doing so from pursuing claims in UK courts. If the defendant is outside England or Wales, the court would normally consider whether it is the correct forum when the claimant applies to serve the claim outside the jurisdiction, or whether to rule the case out as forum non conveniens.[165]The grounds on which permission can be granted are contained in a practice direction to the court, as follows:[166]

The claimant may serve a claim form out of the jurisdiction with the permission of the court under rule 6.36 where -

(1) A claim is made for a remedy against a person domiciled within the jurisdiction.

(2) A claim is made for an injunction ordering the defendant to do or refrain from doing an act within the jurisdiction.

(3) A claim is made against a person ('the defendant') on whom the claim form has been or will be served (otherwise than in reliance on this paragraph) and -

(a) there is between the claimant and the defendant a real issue which it is reasonable for the court to try; and

(b) the claimant wishes to serve the claim form on another person who is a necessary or proper party to that claim.

(4) A claim is an additional claim under Part 20 and the person to be served is a necessary or proper party to the claim or additional claim.

181. The practice direction, as can be seen, is very broad, contains no guidance on the extent of publication in the UK and places wide discretion in the hands of the judge considering the application.

182. The decision on whether to grant permission for a claim to be served outside the jurisdiction is initially made by a High Court Master (a District Judge sitting in the High Court). The decision can be appealed to a High Court judge.

183. In addition to seeking permission under one or more of the grounds under Rule 6.36, a claimant is required to show both publication in the jurisdiction and that a 'real and substantial' tort occurred.[167]A claim can be limited to publication in the UK and the reputation of the individual in the UK.[168]

184. A court can also refuse to hear a case under the doctrine of forum non conveniens - which requires the court consider whether a case could be more suitably tried, for the interests of the parties and the ends of justice, by the courts of another country.[169]

185. The leading case on jurisdiction in defamation cases is Berezovsky v Michaels,[170] decided by the House of Lords in May 2000. Forbes magazine published an article describing two Russian businessmen as 'criminals on an outrageous scale'. Two thousand copies of the article were published in the UK, as against nearly 800,000 in North America.[171] Forbes submitted that the House of Lords should require the case to be held either in Russia, of which the claimants were nationals and presumably where they had the most widespread reputation, or in America, where the principal publication had taken place. The House of Lords disagreed. Lord Steyn described the process which led him to decide that the claim could be considered by the UK courts:

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186. The then Master of the Rolls, Sir Anthony Clarke, explained to us in his evidence how the rules surrounding jurisdiction were meant to work:

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187. Despite this, we have received repeated submissions suggesting that, because of the combined effects of the rules on jurisdiction and of global publication on the internet, what are said to be blatantly inappropriate cases, involving foreigners suing foreigners, are reaching UK courts. Witnesses have told us, further, that defendants in such cases, who find themselves obliged to fight actions in a foreign country under foreign law, are often placed at a disadvantage, to the detriment of free expression.[174]

188. A number of cases have been brought to our attention where concerns have been expressed over the appropriateness of the High Court as a forum. They include a Ukrainian businessman, Rinat Akhmetov, who sued a Ukrainian language website, Obozrevatel, which is based in the Ukraine for £50,000, on the basis that he had a business reputation in the UK and the offending article had been viewed in Britain,[175] and the action brought by Iceland's Kaupthing Bank, which won an apology and damages from Ekstra Bladet, a Danish newspaper. Kaupthing had argued that a number of the paper's articles in both Danish and English were downloaded and read in England and Wales.[176]

189. Some of the most trenchant criticism has come from media organisations in the United States.[177] In a joint submission to the inquiry, a number of international newspapers, internet services and publishing organisations, including the New York Times and Bloomberg, expressed the following criticism of the English court in Lewis v King:

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190. The submission went on to note:

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191. Lawyers who usually act for media organisations in this country also expressed concern. Mr Mathieson told us:

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192. Mr Partington summed up the changes to the jurisdictional rules he thought necessary to protect media organisations and authors from inappropriate claims:

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193. However, we heard from Loreena McKennitt, a Canadian musician and singer, of her frustration at being branded a libel tourist by the press. In 2005, Ms McKennitt sued for invasion of her privacy over a book written by a Canadian friend, but published in England:

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194. Equally, though, we also heard evidence that some law firms such as Carter-Ruck and Schilling have been promoting their expertise in 'reputation management',[183] encouraging law suits in London.

THE INTERNATIONAL CONTEXT

195. The UK's reputation as a country which protects free speech and freedom of expression is being damaged by concern over libel tourism. In the United States, there has been much debate about the alleged chilling effect of UK libel laws on American writers and journalists. During our visit to Washington DC, Albany and New York we met writers and journalists as well as lawyers and legislators who were concerned about this. Much of this concern can be traced to the case of Rachel Ehrenfeld.

196. In 2003, Dr Ehrenfeld, an author based in New York, published in the US a book entitled Funding Evil: How Terrorism is Financed and How to Stop It. A deal to publish in Britain was cancelled following a threat to sue for libel by Khalid Bin Mahfouz, a banker of Saudi origin but now with Irish citizenship. Even though no British edition appeared, Mr Bin Mahfouz brought a libel claim in the UK. Publication in England and Wales consisted of 23 copies of the book ordered over the internet and some passages on a website that had been accessed. Dr Ehrenfeld refused to travel to England to defend herself in the High Court and in 2005 a default judgment was entered against her and she was ordered to pay £30,000 damages together with £100,000 legal costs.

197. Dr Ehrenfeld unsuccessfully sought an order from the American federal courts preventing Mr Bin Mahfouz from enforcing the judgment in the United States. Instead the court invited him to undertake not to pursue execution of the judgment, but he refused.

198. In April 2008, however, the New York State legislature, responding to the Ehrenfeld case, passed the Libel Terrorism Protection Act. The Act prevents the enforcement in America of libel judgments obtained in other jurisdictions against New York-based writers, unless a New York court holds that the judgment satisfies the free speech and free press provisions under federal law of the New York State Constitution.

199. Dr Ehrenfeld told us she believed that if she had to be sued over the book, then as an American citizen publishing a book in America, she should have been sued in America, where she would have been happy to defend her work. She said she had been deterred from defending herself in the High Court in London by several factors, including the cost and the difference in the disclosure rules and burden of proof.

200. Other US states have followed the lead given by New York State. Laws similar to the Libel Terrorism Protection Act have been passed in Illinois, Florida and California and a bill has been introduced in the Hawaiian legislature.[184] Nor has legislative action been limited to individual states. A Bill mirroring the provisions in the New York State Act was passed by the House of Representatives, and may be taken up in the Senate. A Bill which set out to deter claimants from suing American authors in foreign courts by permitting American defendants to counter-sue in the United States courts under certain circumstances and, in addition, allowing the jury to award treble damages, has been abandoned, however.

201. That the United States feels it must take action to protect its citizens from UK judgments in this way has caused dismay in the British legal world. Tony Jaffa told us: "I find it really very distressing that they should think of our laws as terrorism. Just think what that implies. If I were a Parliamentarian I would be absolutely shocked to think that the United States regards our law in that light."[185]

202. It is not only in the United States that concern is felt about the libel tourism in the UK courts. The United Nations Human Rights Committee (UNHRC), in its sixth periodic report into human rights in the UK, strongly criticised the working of the libel laws:[186]

187

203. The international media have also expressed wider concerns about the alleged intimacy between the UK's specialist libel judges and lawyers practising in the field. The memorandum to our inquiry submitted by media organisations including the Association of American Publishers noted the following:

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204. However, when pressed by us on such matters and in particular on developments in the US, the Lord Chancellor said he was not aware that the Government had made any representations on either the pending or the passed legislation in the United States.[189] He argued that it would not be appropriate to do so:

190

205. Whatever the constitutional situation, or diplomatic niceties, we believe that it is more than an embarrassment to our system that legislators in the US should feel the need to take retaliatory steps to protect freedom of speech from what they view as unreasonable attack by judgments in UK courts. The Bills presented in Congress, allowing for triple damages, were reminiscent of the 1970 Racketeer Influenced and Corrupt Organisations Act, which was originally aimed at tackling organised crime. As such, they clearly demonstrated the depth of hostility to how UK courts are treating 'libel tourism'. It is very regrettable, therefore, that the Government has not sought to discuss the situation with their US counterparts in Washington, or influential states such as New York and California. We urge it to do so as soon as possible.

206. When we put the media's concerns about libel tourism to the Lord Chancellor, he told us that he did not believe that libel tourism was a real issue in the UK, saying: "I have yet to be convinced that there is a significant problem. I am not ruling it out; I just want to see what the evidence is."[191]Since then, however, he has set up a 'Working Group on Libel' with the media, lawyers and academics, with the remit 'to consider whether the law of libel, including the law relating to libel tourism, in England and Wales needs reform'".[192]

207. We welcome the Lord Chancellor's establishment of the Working Group on Libel and the inclusion of 'libel tourism' in its remit. We also agree with him that it is important to have an evidence base for decision-making. During the course of our inquiry we asked for information on the number of cases challenged on the grounds of jurisdiction and the success rate of such challenges. We have been provided with no such information and it was not clear who would be responsible for collecting it. Without reliable data it is difficult to see how the Government can monitor the implementation of Rule 6.36 of the Civil Procedure Rules.

208. We recommend that the Ministry of Justice and the Courts Service should as a priority agree a basis for the collection of statistics relating to jurisdictional matters, including claims admitted and denied, successful and unsuccessful appeals made to High Court judges and cases handled by an individual judge. We further recommend that such information be collated for the period since the House of Lords judgment in the Berezovsky case in May 2000 and is published to inform debate and policy options in this area of growing concern.

209. Of the cases identified to us as causing concern, a striking aspect is the low levels of distribution in this country that can be involved. In Berezovsky it was 2,000 copies, against 800,000 in North America. In the Ehrenfeld case, it was 23 copies of the book and some internet 'hits'. In another case, decided in 2008, Alexis Mardas, an associate of the Beatles, was held to be entitled to sue the New York Times in England over allegations in a story contained in a newspaper of which 177 copies had been sold in England and Wales.[193] A notable feature here was that the High Court Master refused to admit the action as an abuse of process, but Mr Justice Eady overruled him on appeal, ordering the New York Times to pay the £65,000 costs of both hearings.[194]

210. The growth of the internet seems likely to augment this trend. News International Limited stated in evidence to us: "With electronic internet publication across borders […] actions are brought in the UK at considerable expense to taxpayers even though there has been minimal publication in this jurisdiction."[195]

211. It has been suggested to us that a simple mechanism to limit libel tourism would be to create a threshold of the number of publications needed for a case to be heard in the UK. Mark Stephens suggested to us that fewer than 1,000 copies should be treated as de minimis by the courts and that in such cases jurisdiction should be declined:

196

212. A test of at least 750 print copies in England and Wales and more than two per cent of worldwide circulation was also proposed by a collective submission on behalf of, inter alia, the Association of American Publishers, US news agencies, NGOs, the Los Angeles Times and New York Times. They also proposed that an article posted on a foreign internet site would have to have been actively promoted here.[197]

213. Although such limits are attractive in their simplicity, any figure would necessarily be an arbitrary one. A de minimis rule of 1,000 copies would ignore the fact that publication to only one person can destroy a claimant's reputation. Equally, there could be relatively wide publication, of over 1,000 copies, and there could still be a more appropriate forum for the case to be heard than the courts in the UK.

214. In cases where neither party is domiciled nor has a place of business is the UK, we believe the claimant should face additional hurdles before jurisdiction is accepted by our courts. On balance, we believe there is sufficient evidence to show that the reputation of the UK is being damaged by overly flexible jurisdictional rules and their application by individual High Court judges, as exemplified by Mr Justice Eady in the Mardas and New York Times case.

215. We recommend that the Ministry of Justice and the Civil Justice Council consider how the Civil Procedure Rules could be amended to introduce additional hurdles for claimants in cases where the UK is not the primary domicile or place of business of the claimant or defendant. We believe that the courts should be directed to rule that claimants should take their case to the most appropriate jurisdiction (ie the primary domicile or place of business of the claimant or defendant or where the most cases of libel are alleged to have been carried out).

The internet and the 'repeat publication' rule

216. Under English and Welsh law each sale of a newspaper, book or other print medium constitutes a separate publication. If a newspaper contains a libel, then each individual publication or sale of that paper is a potential cause for legal action. This is the so-called 'repeat publication rule', which stems from a court decision in 1849. The Duke of Brunswick sent his manservant to purchase a back issue of the Weekly Dispatch, which he believed had libelled him some 17 years previously. The court ruled that this sale constituted a fresh publication so that the Duke was able to successfully sue for libel.[198] While the Duke would no longer be able to rely on a purchase he had engineered as a 'publication', as this would constitute consent to dissemination of the information and an abuse of the process of the court,[199] it remains the position that each time a newspaper, book or article is accessed a fresh publication, and a potential cause of action, occurs.

217. In contrast, most American states apply the 'single publication rule' in defamation cases, meaning that there can only be one cause of action emanating from a publication, no matter how many copies were produced or downloaded, or where and when they were distributed.[200]

218. Until recent times, publishers and authors here enjoyed a measure of protection from the effects of the repeat publication rule thanks to the statute of limitations, which requires claimants to sue within a year of publication. Thus, for example, a year after the publication date of an article in a newspaper, the paper could not normally be sued. The development of the internet, where articles can remain accessible for many years, has changed this. Each time an article is accessed, even if it is more than a year since it was first posted online, that is a new publication and so is potentially capable of attracting a libel action.

219. In 2002, the UK courts confirmed that the multiple publication rule applies to internet archives.[201] Times Newspapers challenged the decision in the European Court of Human Rights but lost.[202] It is noteworthy that The Times lost because of its failure to 'tag' the offending article with a qualifying statement which, in the view of the court, would have removed the 'sting' from the libel.

220. The difficulties caused by the expansion of the internet were acknowledged by the Law Commission in 2002, in the following terms:

203

221. But the internet can also have a chilling effect on organisations worried about being sued in foreign jurisdictions. Article 19, a non-governmental organisation which campaigns for freedom of speech, warned us of the danger of creating "a risk of a "lowest common denominator" approach to the freedom of expression of those who publish on the internet".[204] Of particular concern is the possibility of being sued in relation to material contained in internet archives. Material that is often many years old can be contained in an online archive, leading to the possibility of a publication being sued many years after an article was first published.

222. The Court of Appeal has previously considered and rejected an application that it should introduce a single publication rule into domestic law, a decision which was not appealed to the House of Lords.[205]

223. We heard from Mr Partington of the Media Lawyers Association of the practical difficulties faced by newspapers in defending libel actions based on stories from some time ago:

206

224. A further problem is the limited ability of the originators of articles to control them once they have been placed on the internet. Even if the originator has agreed to remove an article, it can still have a life on the internet with third party sites and bloggers carrying references to it.

225. Mark Thomson, then of Carter-Ruck, explained that this causes problems both for the publisher of the original article, who will be worried about ongoing liability, and for the complainant:

207

226. The Media Lawyers Association suggested to us that there should be consideration of the introduction of a single publication rule for articles on the internet, removing the ability to sue some years after the event.[208] Mr Mathieson of Reynolds, Porter, Chamberlain solicitors suggested to us that the simplest change would be to introduce a statute of limitations in line with that for printed articles, meaning that a complainant would need to sue to within one year of the article first appearing on the internet.[209]

227. However, Mr Thomson suggested that such changes would be unfair to those whose reputations can be harmed by material on the internet many years after its first appearance:

210

228. Since we took evidence on the issues raised by the multiple publication rule and the internet, the Ministry of Justice has published a consultation paper on the issue, Defamation and the internet: the multiple publication rule.[211] The consultation, which ended on 16 December 2009, sought views on the retention of the multiple publication rule, raised the possibility of its replacement by a single publication rule and asks what the consequences would be. The consultation also asked what limitation period for defamation actions would be most appropriate; whether the test should be 'date of publication' or 'date of knowledge'; and whether qualified privilege should be being extended to electronic archives.

229. It is clear that a balance must be struck between allowing individuals to protect their reputations and ensuring that newspapers and other organisations are not forced to remove from the internet legitimate articles merely because the passage of time means that it would be difficult and costly to defend them. We welcome the Lord Chancellor's consultation and look forward to his conclusions. As a general consideration, we believe it would be perverse if any recommendations increased the uncertainty faced by publishers under the UK's already restrictive libel laws.

230. In order to balance these competing concerns, we recommend that the Government should introduce a one year limitation period on actions brought in respect of publications on the internet. The limitation period should be capable of being extended if the claimant can satisfy the courts that he or she could not reasonably have been aware of the existence of the publication. After the expiry of the one year limitation period, and subject to any extension, the claimant could be debarred from recovering damages in respect of the publication. The claimant would, however, be entitled to obtain a court order to correct a defamatory statement. Correction of false statements is the primary reason for bringing a defamation claim. Our proposal would enable newspapers to be financially protected in some degree from claims against which the passage of time may make establishing a defence difficult.

231. We have also received evidence that electronic archives should be protected by 'qualified privilege'. This issue is explored by the consultation, with a one year limitation period suggested, unless the publisher has not amended or flagged the online version in response to a complaint. We agree. This would take into account views expressed by the ECtHR in Times Newspapers v UK, regarding the increasing importance of online archives for education and research in modern times.

Criminal libel

232. Criminal libel stemmed from a time when Government was anxious to defend both itself and the rich and powerful from criticism by the media and the public. If those prosecuted under criminal libel sought to use the defence of justification they had to prove not only that a statement was true, but also that its publication was for the public benefit. Defendants could thus be convicted even when they could prove they had told the truth. The maximum sentence available was two years in prison. Criminal libel was removed from the statute books of England and Wales in November 2009 by the Coroners and Justice Act, though it remains an offence in Scotland.

233. Before the passage of the Act, we received eloquent evidence on this matter. In a written submission to this inquiry Article 19 stated that criminal libel was simply not required to protect reputations where civil defamation laws existed, and that imprisonment and a criminal record were disproportionate as punishment for defamation. The submission concluded:

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234. Mark Stephens, of Finer Stephens Innocent solicitors, told us that, while the criminal libel laws were effectively moribund in the UK, the legitimacy they gave to similar laws in other countries was worrying:

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235. The offence of criminal libel is untenable in a modern, democratic society. We therefore welcome the Government's decision, 27 years after it was advocated by the Law Commission, to repeal the law of criminal libel. We hope this will encourage other legislatures, including the Scottish Parliament, to demonstrate their own commitment to freedom of expression by doing the same.

114 Sim v Stretch [1936] 2 All ER 1237, 1240, per Lord Atkin Back

115 Defamation Act 1952, section 4 Back

116 HC Deb 22 Feb 1996 c564 Back

117 Defamation Act 1996, section 8(2) Back

118 Ibid., section 1 Back

119 Q 869 Back

120 John v Mirror Group Newspapers [1995] EWCA Civ 23 Back

121 Lillie v Newcastle City Council Back

122 "Court 'vindicates' McCann suspect", BBC News Online, news.bbc.co.uk Back

123 Q 865 Back

124 Q 945 Back

125 Ev 482 Back