Written evidence submitted by Article
19
1. ARTICLE 19, Global Campaign for Free
Expression, is an international human rights NGO based in the
UK which works around the world to protect and promote the right
to freedom of expression. It takes its name from Article 19 of
the Universal Declaration of Human Rights, which guarantees
freedom of expression.
2. ARTICLE 19 has a long track record of working
on defamation law reform in countries around the world, as well
as of developing international standards in this area. Our July
2000 publication, Defining Defamation: Principles on Freedom
of Expression and the Protection of Reputation, has been endorsed
by, among others, the UN Special Rapporteur on freedom of opinion
and expression and is widely relied upon as a leading statement
of appropriate defamation standards. We have engaged in defamation
litigation before a number of national courts, as well as before
the European Court of Human Rights and the Inter-American Court
of Human Rights.
3. Our submission focuses on four key defamation
issues, namely jurisdiction, standards, damages and costs. It
looks at these issues from the particular perspective of NGOs
which engage in public advocacy. These NGOs, as part of their
core work, often engage in criticism, sometimes trenchant in nature,
which renders them potentially subject to defamation liability.
In the vast majority of cases, their criticism touches on matters
of genuine public concern and, frequently, these NGOs are among
a small number of social players who approach these issues from
a true public interest perspective. Although advocacy NGOs should
not be immune from being sued in defamation, it is of the greatest
importance that they not be deterred from engaging in responsible
advocacy out of fear of the consequences of defamation actions.
JURISDICTION
4. In the modern world, any statement published
online can be accessed anywhere via the internet. Many NGOs publish
all of their reports and public statements online. This means
that they may be held liable in any jurisdiction for their publications,
depending on the applicable legal rules, as their material may
be downloaded, and hence said to have an impact, everywhere. This,
in turn, poses a risk of a "lowest common denominator"
approach to the freedom of expression of those who publish on
the internet, as plaintiffs forum shop or, to put it more colourfully,
engage in libel tourism, seeking a jurisdiction which is likely
to be more sympathetic to them and where they can exert some influence
over the defendant.
5. The UK, and London in particular, is well-known
internationally as a "good" jurisdiction for defamation
plaintiffs for a number of reasons, including relatively weak
standards of protection for freedom of expression in the context
of defamation law. UK courts have in the past exercised jurisdiction
in cases which had little connection to the UK. An example is
the case of Berezovsky against Forbes magazine, where the House
of Lords held that the UK was a suitable jurisdiction even though
Forbes' circulation in the UK was only 2000 copies, compared to
nearly 800,000 copies in the US and Canada. To prevent the UK
being used as a venue for libel tourism, we recommend that rules
be put in place which require a more substantial connection to
the UK than is currently the case.
STANDARDS
6. A key driver behind libel tourism is
the desire of plaintiffs to find jurisdictions where their cases
will have a greater chance of success. The fact that the UK is
so popular with defamation plaintiffs points to the nature of
the balance that UK courts have struck between freedom of expression
and protection of reputation. US courts have in the past refused
to enforce defamation judgments issued by UK courts on the basis
that they were offensive to the First Amendment guarantees of
free speech and the states of New York and Illinois have recently
passed legislation to this effect.
7. In many jurisdictions, defamation defendants
benefit from a strong good faith or reasonableness defence, whereby
they do not incur liability if they acted in good faith or where
they took reasonable steps to verify the accuracy of their statements.
This takes different forms. In the US, public figure plaintiffs,
defined broadly, have to prove that the defendant acted with actual
knowledge of falsity or with reckless disregard for the truth.
Similar standards apply in India and New Zealand. In Australia,
there is a defence of reasonable publication for political debate,
while in South Africa, a reasonableness defence also applies.
8. The UK has, over the last ten years,
also moved to recognise a form of reasonableness defence, starting
with the Reynolds case in 1999, and being further developed in
the Jameel case in 2006. In practice, however, defamation law
remains hostile to defendants in the UK relative to many other
jurisdictions. We recommend that rules be put in place which are
more protective of freedom of expression, particularly in cases
involving. Although we are not calling for the "reckless
disregard for the truth" standard which applies in the US,
the rules should provide broad protection for statements on matters
of public concern which are made in good faith and where, taking
into account all of the circumstances, it was reasonable for the
plaintiff to make.
DAMAGES
9. A key problem with defamation cases in
many jurisdictions, including in the UK, is their heavy focus
on damages, instead of on remedies which more directly redress
the harm done. Furthermore, although measures were put in place
in the UK some years ago to limit defamation damages, they remain
much higher than in most European jurisdictions (albeit not as
high as in the US, where, however, it is much more difficult to
win a defamation case). In particular, there remains a tendency
to make awards which are at the higher end of physical damage
awards, even though the underlying social harm of being defamed
can almost never properly be compared to losing an eye or a limb.
Such potential damage awards are extremely threatening to NGOs,
many of which are charities operating on small budgets and prohibited
from turning a profit.
10. Within the European context, as in many other
parts of the world, there is much greater reliance on non-pecuniary
remedies for defamation and, in particular, a right of reply or
correction. Indeed, the Council of Europe has adopted resolutions
calling for the availability of such a remedy (see Resolution
(74) 26 on The Right of Reply). We recommend that consideration
be given to further reducing the level of awards in defamation
cases and to placing more emphasis on non-pecuniary remedies.
This might include taking into account any self-regulatory remedies
which have been awarded (for example, as provided by the Press
Complaints Commission), as well as the failure of the plaintiff
to take advantage of such remedies.
COSTS
11. Costs in defamation cases in the UK
have now reached what may, without exaggeration, be called crisis
proportions, particularly from the perspective of NGOs. Costs
can be crippling, even if one is ultimately successful in winning
a case. The pure "harassment" value of defamation cases
has been recognised in many countries, where rich and powerful
individuals bring cases which have no chance of success, simply
to deter potential critics.
12. Although some effort has been devoted
in the UK to measures to reduce the costs of defamation actions,
these have largely failed. Furthermore, conditional fee arrangements
have substantially exacerbated the problem, driving overall costs
up, providing various incentives to lawyers to promote defamation
cases and, most obviously, encouraging plaintiffs to bring potentially
dubious cases in the first place. We note that the viability of
the current defamation law regime rests importantly on the vast
majority of individuals being prepared to tolerate a good measure
of even unfair criticism, and that if everyone with a decent prospect
of winning were to bring a defamation case, freedom of expression
would be in serious peril. We recommend that conditional fee arrangements
either be prohibited altogether in the context of defamation actions
or that stringent conditions be placed on them to prevent these
negative effects, perhaps including rules on when they may be
used and by what sorts of plaintiffs.
January 2009
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