Written evidence submitted by Finers Innocent
LLP on behalf of their clients
Advance Publications, Inc., directly
and through its subsidiaries, publishes in the United States over
25 magazines with nationwide circulation (including the New Yorker,
Vanity Fair, and Vogue), daily newspapers in over 25 US cities,
and weekly business journals in over 40 cities. It also owns many
internet sites and has interests in American cable television
systems serving over 2.3 million subscribers.
Association of American Publishers is
the national trade association of the US book publishing industry.
AAP's more than 300 members include most of the major commercial
publishers in the United States, as well as smaller and non-profit
publishers, university presses and scholarly societies. AAP members
publish hard cover and paperback books in every field, education
materials for the elementary, secondary, post-secondary, and professional
markets, scholarly journals, computer software, electronic products
and services.
ASSOCIATED
PRESS
The Associated Press is an international global news
service. Every day, more than half the world's population sees
news from AP. AP serves more than 15,000 newspapers, broadcasters,
online publishers and other outlets with reports in all media,
gathered through its network of 243 bureaus and offices in 97
countries.
BLOOMBERG
Bloomberg is a global information company employing
more than 10,000 people with a focus on business news which is
delivered to a subscriber network of terminals in business institutions,
as well as via television, radio, print, and the internet.
CBS TELEVISION
Fairfax Media Limited is Australasia's leading
media company. Mast heads include the Sydney Morning Herald, The
Age, The Australian Financial Review, The Canberra Times, BRW,
The Sun-Herald and The Land. Its New Zealand mast heads include
the Dominion Post, The Press, The Sunday Star-Times, TV Guide,
NZ House and Garden and Cuisine. In addition, Fairfax publishes
regional and community newspapers, financial and consumer magazines,
and holds radio licences in metro and regional Australia and several
agricultural publications in New Zealand and the United States.
Fairfax Media has leading
on-line businesses in the region including the No.1 news sites
SMH.com.au and theage.com.au.
Global Witness US reports expose corrupt
exploitation of natural resources and international trade systems,
with a particular focus on the link between exploitation of natural
resources, and conflict and corruption, as well as human rights
and environmental abuses.
GREENPEACE INTERNATIONAL
Human Rights Watch is a charity that
performs research and advocacy reporting on human rights abuses
in over 70 countries worldwide. Headquartered in New York, it
has field officers and branch officers as well as committees of
support in many countries. Its reputation for integrity and accuracy
of reporting is high, and is safeguarded by rigorous policies
of fact-checking and review.
Because Human Rights Watch reports on serious abuses
of international law, including the Commission of International
Crimes, we are particularly cautious in naming individuals who
may bear responsibility for these acts. HRW's editorial process
involves multiple layers of divisional and programmatic review
as well as legal review and sometimes specialist libel review.
All researchers, advocates and persons who speak publicly on behalf
of the organisation are required to undergo annual libel training
that stresses the need for care, responsibility and accuracy above
the particular legal requirements of any given legal system.
Los Angeles Times' multi-media editorial
department is one of the most formidable in the world—20
foreign, eight national and four state bureaus—and the largest
news gathering operation west of the Mississippi. The newspaper
is also available on-line at www.latimes.com featuring more than
50,000 content pages and over 40 blogs. Since 1942 LA Times has
won more than 38 Pulitzer Prizes of which five are gold medals
for public service.
MacMillan (US) imprints include Farrar
Straus and Giroux, Henry Holt & Company, W.H. Freeman and
Worth Publishers, Palgrave Macmillan, Bedford/St. Martin's, Picador,
Roaring Brook Press, St. Martin's Press, Tor Books, and Bedford
Freeman & Worth Publishing Group. MacMillan US also publish
scholarly, scientific journals and periodicals such as Scientific
American.
*Media Law Resource Center, Inc. *(MLRC)
is a non-profit professional association for media and media
defense lawyers, providing a wide range of information and support
on media law and policy issues, including news and analysis of
legal developments, litigation resources and practice guides,
and national and international media law conferences. MLRC also
works with its membership to respond to legislative and policy
proposals, and speaks to the press and public on media law and
First Amendment issues. MLRC was founded in 1980 by leading American
publishers and broadcasters to assist and support the media law
bar and to defend and protect free press rights under the First
Amendment. Today MLRC is supported by over one hundred media companies,
including America's leading publishers, broadcasters, and cable
programmers, media and professional trade associations, and media
insurance professionals. The MLRC's Defense Counsel Section includes
more than 225 law firms in the United States, and around the world,
that specialize in media defense representation.
NBC UNIVERSAL INC
New York Times is an American newspaper
published in New York City. It is the largest Metropolitan newspaper
in the United States. The newspaper has won 98 Pulitzer Prizes
and its parent publishes 18 other newspapers including the Boston
Globe.
1. These submissions are presented on behalf
of foreign based newspapers and news organisations and internet
services, together with overseas publishers and human rights organisations.
We all have substantial and increasing concern at the potential
of the English law of defamation to affect our work unjustly and
oppressively, reducing the amount of newsworthy information that
we may disseminate to people in the UK, and particularly in England
and Wales. The committee will be aware of the "libel tourism"
and "libel terrorism" bills in the United States, which
have been fuelled by a real and justified grievance: we do not
think, however, that such laws satisfactorily address a problem
that has arisen between two friendly nations. US/UK co-operation
in communications is vitally important to both countries: indeed,
"freedom of speech" was the first of the four freedoms
enumerated by President Roosevelt after America entered the Second
World War on the side of the UK and of liberty. We respectfully
suggest that the problem caused by libel law—and sometimes,
by libel lawyers—could be addressed by the UK government
and parliament so that it will no longer threaten to damage US/UK
relationships.
2. The claimant-friendliness of English
libel law, most notoriously its requirement that the media bears
the burden of proving truth, attracts many wealthy foreign forum
shoppers in search of favourable verdicts that they would not
obtain at home, or in the home countries of publishers whose newspapers
and magazines have an international circulation. It will be noted
that both the US and Continental Europe (including the EU states)
places the burden squarely on the Claimant. The rule which gives
them the opportunity to sue a foreign publication with a minute
circulation in the United Kingdom dates from 1849, when the Duke
of Brunswick despatched his manservant to a newspaper office
to obtain a back issue of the paper in order to sue for a libel
he had overlooked for 17 years.[1]
This single publication was deemed sufficient to constitute the
tort of libel and from this anachronistic case springs the absurd
but venerated rule that in the UK a single defamatory publication—even
if only in a library—is an actionable tort[2].
3. The primitive Duke of Brunswick
rule that every publication is a separate tort has long been abandoned
in America where a single publication rule applies to every edition
of a newspaper or to the placing of an article on an internet
site. However, in a disastrous 3-2 decision, the House of Lords
approved the Duke of Brunswick rule in Berezovsky v
Forbes Magazine. Boris Berezovsky, the controversial Russian
oligarch sued Forbes for damage done to his "English"
reputation by allegations that he had made his billions through
corruption, gangsterism and murder. Forbes sold only 1900 copies
in England but 800,000 in the United States. The trial judge ruled
that Russia and the United States were both more appropriate places
for trying the action because Berezovsky at the time had an entirely
Russian reputation and the defendant was an indelibly US magazine.
However, on appeal three judges in the House of Lords were struck
by Berezovsky's ex-wives in Chelsea and by his connections with
royalty and UK based banks. The minority judges said that the
trial judge had been "entitled to decide that the English
court should not be an international libel tribunal for a dispute
between foreigners which had no connection with this country".[3]
4. The result of the Duke of Brunswick
rule is that blatant internet forum shoppers can come to London
to sue foreign news organisations in relation to allegations that
are entirely sourced abroad. The Court of Appeal has permitted
American boxing promoter Don King to sue a US attorney for defamation
over anti-Semitic allegations made on a Californian website—an
unhappy decision which followed the green light that Berezovsky
gave to forum shoppers. It is difficult to understand why Americans
who fall out with each other in America should be permitted to
take up the time of UK courts with their slanging matches, rather
than resolve them under their own law. If English courts continue
to exercise their exorbitant jurisdiction over foreigners responsible
for alleged libels on the internet, then those defendants who
have no assets in England will simply be advised to stay away
from any trial, especially if they are American, since their courts
do not enforce English libel judgments which are repugnant to
US Constitutional Principles.
5. American courts refuse to enforce awards
made under British libel law, on the ground that this law is "antipathetic
to the First Amendment"[4].
In America defamation actions succeed when the media can be proved
at fault: the claimant must show that the allegations were false
and published with a reckless or negligent disregard for the truth.
What US courts find repugnant about UK law is that it places the
burden of proving truth on the defendant and holds him liable
to pay damages for statements he honestly believed to be true
and has published without negligence. In every other area of tort
law the burden of proof is on the claimant: why should libel be
any different? The reason, of course, is that the English common
law disfavours free speech. It does so by use of two absurd presumptions:
that defamatory (ie critical) statements are always false, and
that defamations always do significant damage. These two presumptions—of
falsity and damage—are both in terms illogical, but are
in law irrebuttable and further proof that English law disfavours
free speech.
6. Repressive British laws—especially
sedition and criminal libel—were repudiated by the First
Amendment to the US Constitution. In New York Times V Sullivan
(1964) the US Supreme Court ruled that defamation law could restrain
coverage of public events and public figures which was malicious,
in the sense of being knowingly false or having a reckless disregard
as to truth. A more stringent test applies to reporting facts
about persons who are not public figures. There is a widespread
belief in the UK that US libel law is powerless. Nothing could
be further from the truth. It is certainly different, but in some
respects is far less favourable to the media. Jury damages can
be for millions of dollars—there is no cap. There is much
less protection for journalistic source disclosure, and orders
for discovery can be extensive and expensive. So all significant
US media organisations employ defamation lawyers and fact-checkers
of the copy as part of the editing and review process, and they
take out insurance against non-compliance with US law. Libel lawyering
and insurance is part of the management and editing function of
the news organisation, directed to the law that applies where
it is established—ie the state where it predominantly circulates.
Given the extent to which media organisations rely on their compliance
with their own country's law, it is, as a general proposition,
unfair to subject them to a law and procedure that is entirely
alien, and which lacks the defences available in the place of
main publication.
7. It must also be stressed that most US
media organisations readily offer alternative dispute resolution.
Many have ombudsmen who will make an independent investigation
of any allegation of defamatory reporting and order corrections
and apologies—sometimes after a very critical report on
journalistic standards. Most internet services will be prepared
to hyperlink the offending article to a letter of complaint, so
that no-one will read it without being able to read the complainant's
alternative presentation. Newspapers usually offer a right of
reply by way of a letter to the editor. English libel lawyers
usually and foolishly tell their clients to reject this offer,
despite the fact that the letters on the Op-Ed pages are often
the second most widely read section (other than the front page).
There is a real sense amongst English claimants' lawyers that
they want money for their clients as well as themselves, as if
only money will assuage hurt feelings and compensate, in some
metaphysical way, for the blot on the family escutcheon. Many
billionaire Claimants who go to London to do their suing appear
particularly amenable to this line of thought. We gain the impression
that many of these claimants are so wealthy that they do not bother
about the five or low-six figure sums that they might eventually
receive in damages in England. They could obtain vindication (as
did Sir Salman Rushdie) by means of a declaration of falsity,
where no damages are paid. Rather we are concerned that money
claims are used—particularly against Defendants with limited
means—in order to inflict some pain and irritation and frustration
and expense on the NGO's, journalists and editors they see as
their tormentors. They use libel actions, in other words, not
to vindicate their reputation but to harass, embarrass and chill
their critics and to develop for themselves a reputation for taking
libel action whenever criticised,—a reputation that will
deter would-be critics, whose newspapers & NGO's do not have
the money to fund expensive libel defences.
8. What normally happens when a foreign
newspaper or website is sued in the jurisdiction of England and
Wales, either by a UK resident or (increasingly) by a foreigner
(ie a libel tourist, who wishes to take advantage of the UK's
plaintiff-friendly libel law), is the receipt of a pompous "letter
before action" from a firm of London solicitors. It will
demand apologies, damages and (of course) their legal costs. When
a factual error is demonstrated, the foreign media organisation
will normally publish a correction or arrange for a hyperlink
that draws it to the attention of every internet downloader. Otherwise,
it will offer an independent inquiry if it has an ombudsman, or
at least a letter to the editor. These offers are usually rejected.
Then will come a request to appoint solicitors in London as agents
to receive service. This would reduce the initial costs in the
litigation, but would also place the burden of proof on the media
defendant if it makes a forum non conveniens argument.[5]
So it is a request that the media will be well advised to turn
down.
9. In this event, the claimant will apply
to a master or judge in the High Court for an order to serve legal
process on the defendants out of the jurisdiction. Regrettably,
the grant of such an order has become a mere formality—no
enquiry ever seems to be made as to whether it is fair for a foreign
media defendant to be hauled into a London court to defend a publication
which may have sold very few copies here or which may have no
relation at all to matters in Britain. The master or judge in
the Royal Courts of Justice acts as a mere rubber stamp for the
claimants: they pay their money, they make their witness statement
and in a formal and quick procedure they are given their order
without any thought as to how it will impact on free speech. All
they need to show is one single downloading or one single publication
within the jurisdiction. In automatically granting such requests
for "service out" on foreign media defendants, English
law, and English judges, manifest their contempt for free speech.
They automatically decide to drag foreign media into the expensive
and pettifogging English libel world, without the slightest enquiry
into the fairness of so doing.
10. Subsequently, it becomes possible for
the media organisation, once it instructs solicitor and counsel
(at the cost of about fifty thousand pounds), to come to court
to make a forum non conveniens application before a High
Court judge. In this argument, that usually lasts a day, it contends
that England is an inappropriate jurisdiction for trial of a libel
eg where millions of copies have been distributed in the US by
a US paper, and very few in the UK. IN the 1990s, there were some
very sensible decisions which sent US libel tourists packing:
see Wyatt v Forbes[6]
and Chadha v Dow Jones[7].
These were American plaintiffs who could show only a tenuous connection
with the UK, and were suing Forbes Magazine and the Wall Street
Journal which were overwhelmingly published in the US. However,
this pre-internet line of authority was severely weakened by the
disastrous House of Lords decision, (by three judges to two) in
Berezovsky v Forbes[8]
which permitted the oligarch to sue Forbes Magazine in London
over allegations that related to matters that took place only
in Russia. This decision upheld the absurd early nineteenth century
rule in the Duke of Brunswick's case, that every single
publication is a separate libel, so just a few internet downloads
in England gives jurisdiction to try a defamation claim here.)
Despite Lord Hoffman's powerful and logical dissent, warning against
the temptation to make England a global defamation policeman,
this case has now made London the libel capital of the world.
Interestingly, Berezovsky settled the case in a deal where Forbes
apologised for its allegations that he had murdered rivals (it
could not prove them) and he dropped his complaint about the numerous
corruption allegations, which Forbes said in its pleadings that
it could prove. No mention has been made of them ever since:
in Britain a powerful and wealthy claimant of any nationality
with a track record for bringing libel actions can successfully
chill speech about himself.
11. The test for accepting jurisdiction—i.e.
rejecting a forum application—is whether there has been
a "real and substantial" tort in this country. England's
libel judges, themselves former libel practitioners, naturally
think that there has been a real and substantial tort, unless
the defendant can prove that there were only a handful of internet
downloads, or a few print copies circulated here. The paucity
of copies can also be the basis of an abuse of process application,
which is unlikely to succeed given the mindset of the present
libel judges. One that did, before a sensible master, was Mardas
v New York Times, where only 177 copies of the paper had been
sold in London (mainly to New York tourists) and the story had
been archived on an NYT internet site. The story itself was an
obituary of the Maharishi, which had quoted from Paul McCartney's
autobiography (published twenty years before and never sued) as
having criticised Mardas for spreading a rumour, in India in 1968,
that the guru had sexually harassed a nurse. The story of the
Mardas rumour-mongering had been in circulation for many years
in many authoritative books but he had never sued over it. The
key witnesses—John Lennon and George Harrison and the Maharishi
himself—were dead. The Master thought it an unjustifiable
waste of court time and the litigants' money to stage a trial
over the matter that could never be conclusively determined. However,
Eady J overruled him and held that the sale of 177 copies was
enough—the trial should go ahead, irrespective of the massive
costs to the defence. He ordered the NYT to pay £65,000 immediately,
the cost of winning before the Master one morning and losing before
the Judge later at a one day hearing. The rights and wrongs of
what happened in the Maharishi's commune forty years ago are obviously
impossible to establish, but the English libel judges are determined
that the time of their courts should be taken up with the attempt.
Even if the New York Times wins in the long run, it will
get back only 65% of its costs.
12. To foreign observers the English libel
industry is most unusual. Its legal costs are by far the highest
in Europe.[9]
There are only two main libel chambers—5 Raymond Buildings
and 1 Brick Court—whose barristers do most of the defamation
work. In recent years it has been from these chambers all the
libel judges have been recruited—there are four of them
at present, two from each Chambers. It is quite surprising to
foreign eyes, who have a different experience, that whoever allocates
High Court judges does not think that judges bred in any other
disciplines—eg public law, for example, which gives some
training in freedom of speech—are qualified in or capable
of handling trials for libel. The result is that the only judges
available in England for libel trials are steeped in the arcane
world of common law libel, which has developed without much respect
for rights of freedom of speech. This has a financial consequence
for defendants: it means that in order to make the law fairer
and more favourable to free speech, defendants cannot expect libel
judges to have much sympathy. Their decisions must be appealed—not
just to the Court of Appeal but to the House of Lords. The cost
of this is exorbitant, and it is little wonder that UK newspapers
and media organisations have no stomach for paying it. Forbes
took the risk and lost by the narrowest of margins. The Wall Street
Journal in Jameel v Dow Jones put up the money and won
a major victory in refurbishing the Reynolds public interest
defence. However, Dow Jones only received part of its costs. Nonetheless
the case exposed how libel judges from libel chambers had been
sabotaging the Reynolds public interest defence since 1998,
when it was developed by the House of Lords. Is it not a matter
of some embarrassment to UK legislators that freedom of speech
in the UK is dependent on the long purse of foreign news organisations?
13. That long purse is no longer available.
Several major US papers are now in receivership, and the drying
up of the advertising market with consequent loss of journalistic
jobs means there is little money available for improving media
law in Britain. Leading US newspapers are actively considering
abandoning the supply of the 200 odd copies they make available
for sale in London—mainly to Americans who want full details
of their local news and sport. They do not make profits out of
these minimal and casual sales and they can no longer risk losing
millions of dollars in a libel action which they would never face
under US law. Does the UK really want to be seen as the only country
in Europe—indeed in the world—where important US papers
cannot be obtained in print form?
14. More important—certainly more
damaging for free speech—is the Duke of Brunswick
"multiple publication" rule, long abandoned in the US,
whereby one internet download in a particular state amounts to
publication in that state so as to found jurisdiction. One "hit"
in England is enough for a multi-million pound libel action in
London. All major foreign newspapers now have internet sites—they
archive each publication as a matter of course for the historical
record. They are usually prepared to hyperlink to the article
any letter or reply that corrects facts or disputes opinions,
but they will not obey and they are not obliged to obey orders
or injunctions from foreign courts. If claimants want injunctions,
they must sue in the US, in the state of predominant publication.
The same should apply when they want damages.
15. The consequences of making media organisations
liable for putting articles—perfectly lawful by the law
of their own domicile—on websites which are occasionally
accessed in England should be obvious. The cost of fighting libel
actions may lead internet publishers to build "fire walls"
against access from the UK, in order to avoid such actions. This
would damage British business and its communication and information
services, and would draw international attention to the UK's failure
to protect free speech. It would underline the hypocrisy of the
British government lecturing other countries on the subject, when
the UK itself had become a black hole for internet censorship
through its friendliness to foreign libel tourists.
16. What is the best solution to this admitted
problem with the internet? Defamation is a means by which the
law strikes a balance between the individual's right to reputation
and the public right to communicate and receive information. In
the context of global dissemination of information by a technology
which has no clear or close comparison with any other, a publication
rule should not expose foreign publishers to liability in a jurisdiction
like England, which has a different and more repressive law of
libel, unless they actually solicit or encourage access by residents
in the UK to their internet sites.
17. That would mean a rule which locates
the act of publication in the place where the article was substantially
prepared for uploading rather than in any place where it is downloaded
by computer users—unless the publisher has, by its conduct
in that place, instigated the downloading. Every media corporation
has a "centre of operation" where journalistic material
is edited and prepared for publication and where the publication
is read by lawyers and insured against libel action. Usually this
will be in the place where the article is written and uploaded
on its server as well. The most satisfactory rule would locate
the act of internet publication in the place where the article
is substantially produced, rather than in any place where it happens
to be downloaded by computer users, unless the publisher or author
has instigated the downloading (eg by advertising the article)
and thus has waived the rule's protection and provided the state
in which the downloading occurred with a clear interest in assuming
the power to adjudicate the claim.
18. The above is the kind of rule that one
would expect in an international treaty, and Justice Eady is on
record in Mardas v NYT as calling for an international
treaty on the subject. However, it is unlikely that any treaty
could be agreed for some years. There is no reason why Britain
could not take the lead in this vexed area and provide a solution
that is satisfactory to all except the most aggressive libel tourists.
That solution, we urge, would be the following:
(i) Applications for service out of the jurisdiction
on foreign media organisations in relation to any tort of defamation
shall be notified to the said organisation three weeks in advance
of the hearing of the proposed application.
(ii) The master or judge shall only give leave
if satisfied by the proposed claimant, and after giving the proposed
defendant the opportunity to be heard (without submitting to the
jurisdiction), that
(a) In any case relating to publication
of print copies, there are at least 750 such copies circulated
by the defendant in England and Wales and that that the actual
number of copies circulated here exceeds 2% of the total circulation
of the publication in the world.
(b) In a case relating to publication on
a foreign internet site, that the article in question has been
advertised or promoted in England and Wales by or on behalf of
the defendant.
(iii) If, at any stage after leave to bring the
action has been given, it appears that 2a) or 2b) is not in fact
satisfied, the defendant may apply for summary dismissal of the
claim.
(iv) The Duke of Brunswick rule should
be abolished, and the US single publication rule should be adopted.
(v) In all actions for defamation, the normal
rule in tort shall apply, namely that the burden of proof that
the imputation was defamatory shall lie on the claimant.
(vi) The presumption of falsity and presumption
of damage should both be abolished.
(vii) In any action that proceeds in England
or Wales against a foreign publisher or a foreign website, in
relation to a publication which is substantially distributed in
the state in which the publisher is headquartered, the court shall
apply to that publication the defamation law of that particular
foreign state.
1 Duke of Brunswick v Harmer (1849) 14 QB 185 Back
2
"Not a decision that would be made today" per
Lord Justice Sedley Yousef Jameel v Dow Jones & Co Inc;
[2005] EWCA Civ 75 Back
3
Berezovsky v Forbes 2000 EMLR 643 at 666, per Lord Hoffman. Back
4
Bachchan v India Report Publications 585 NYS 2d 661 (1992) Back
5
See Schapira v Ahronson 1999 EMLR 735 Back
6
Unreported December 2nd 1997, Morland J Back
7
1999 EMLR 724, CA Back
8
2000 EMLR 643 Back
9
See A Comparative Study of Costs in defamation Proceedings
Across Europe; Centre for socio-legal studies, University
of Oxford, December 2008. Back
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