By Duncan Calow, Partner and Sarah Phillips, Associate, DLA Piper, London
"Everything must change so that everything can stay the same." The dictum of the hero of Lampedusa's brilliant novel The Leopard might apply just as well to recent developments in libel law as to 19th-century Sicilian politics. The dangers of so-called "libel tourism" – and steps taken to limit its effects – have continued to make headlines since we discussed them in these pages for the 2009 Book Fair.
Examples of high profile individuals finding the UK a claimant-friendly place to bring a defamation action against publishers and authors are well-known. Roman Polanski was famously able to sue Vanity Fair magazine in the High Court in London without ever stepping foot inside the court. A remote libel-tourist, Polanski was allowed to give evidence by video-link from Paris in order to avoid the risk of extradition to the US. The Court awarded him £50,000 damages.
Our courts have generally been prepared to try libel cases provided that the offending material has been published here. Just a few copies of a book or magazine being offered for sale may be considered sufficient, and internet bookshops and online publishing have increased the potential risk. Only in limited cases have the UK courts turned away claimants seeking a hearing. So claimants have sued foreign defendants here, obtained judgment here and (whether the defendant has appeared or not) obtained permission from the London court to take the judgment and seek to enforce it in other jurisdictions. This has caused particular consternation in the US where the legal landscape is very different, and led libel tourism to be renamed "libel terrorism". As Andrew Deutsch explains, local and national measures have now been taken to limit its effects.
Partly in response to this, but also in response to some high profile domestic cases, including the well-publicised dispute between Dr Simon Singh and the British Chiropractic Association, proposals for changes to UK libel law have also appeared on the agenda in 2010. Following initial recommendations published by the outgoing Labour Government at the beginning of the year, the new Conservative Liberal Coalition has since confirmed its commitment to reform. They promise a draft Defamation Bill in the spring of next year, although there is, as yet, no clear timetable for the introduction or passage of actual legislation. In the meantime Lord Lester of Herne Hill QC has introduced a private Bill in Parliament. This has met with mixed reviews, but it continues to progress through the legislature and covers a number of topics worthy of mention. These include:
The Bill introduces a defence of responsible publication on a matter of public interest. This is in effect a codification of the so-called Reynolds defence – an invention of the court, which has attempted to soften the edges of libel law. It effectively gives protection to defendants who can show they have taken certain steps to verify the material they publish.
The multiple publication rule, first established by a case back in 1849 – which allows every re-publication of an allegedly defamatory statement to amount to a new cause of action – would be overturned. A concern for publishers even in Victorian times, this rule has caused particular problems for online publishers with digital archives effectively re-published continually.
Claimants would be required to show that a publication has caused "substantial harm" to their reputation, or that such publication is likely to cause harm. If such harm is not proven then the court must reject the claim, unless it is not in the interests of justice to do so. Intended as an additional hurdle for claimants, this could reduce the number of proceedings issued.
The Bill attempts to deal with the issue of libel tourism by requiring a UK court, in assessing whether there has been "substantial harm", to take into account publications in other jurisdictions. This still needs to conform with European law, which entitles anyone to bring an action if a "harmful event" has occurred within an EU territory, with the national courts left to determine what should be defined as such an event.
These are important developments. In the longer term their impact could be significant. And yet for many they will fall far short of the changes needed to transform the legal environment for publishing in the UK. Famous libel tourists and high profile cases make the news, but they are relatively limited in number. The real impact of libel law – and of newer developments in areas such as privacy – is in its influence on the everyday decisions made in writing, editing and clearing manuscripts for publication. The risks and costs of litigation are high and protections such as insurance are only ever a partial (and expensive) answer. That will remain so notwithstanding the above. It will require more far-reaching reform before publishers in the UK and US are on a level playing field, as Andrew explains further.
By Andrew Deutsch, Partner, DLA Piper, New York
Since Duncan and I last reported on libel tourism, the US climate for foreign defamation plaintiffs has worsened considerably. President Obama has now signed a law, which makes foreign libel judgments unenforceable in any US court, unless the rendering country applies protections for speech equivalent to those granted by the First Amendment to the US Constitution. The new law is officially named the Securing the Protection of our Enduring and Established Constitutional Heritage Act. This mouthful reflects America's love for acronymic legislation (see the PATRIOT Act), and was crafted so that the unofficial title would be the SPEECH Act.
At the Congressional hearings on the legislation, the focus was squarely on the incompatibilities between US and UK libel law. The report of the House of Representatives ("House Report") noted that UK law is "plaintiff-friendly," puts the burden of proving truth on the defendant, makes opinions actionable except in the narrow "fair comment" context, and allows injunctions that would be condemned as a prior restraint in the US. It also criticised the UK's willingness to hear libel cases brought by non-residents, and to take jurisdiction where only a few copies of a publication were circulated in the UK, or in any case where a challenged statement could be accessed in the UK via the internet. The House also condemned the frequency with which UK solicitors threaten American authors and publishers with pre-publication libel suits in the UK, even though the publications are to take place in the US.
The SPEECH Act bars recognition of incompatible foreign libel judgments in both federal and state courts. It provides that the US courts shall not recognise or enforce a foreign defamation judgment unless the rendering country provides at least as much protection for speech as the First Amendment, or those courts find that on the same facts, the defendant would have been found liable for defamation by a domestic US court. The judgment plaintiff bears the burden of proof on these issues. Courts may award attorneys fees to a defendant that successfully resists enforcement of the foreign judgment.
The law addresses the core libel tourism issue by providing that foreign defamation judgments shall not be enforced unless the foreign court exercised jurisdiction over the defendant under standards compatible with US constitutional due process. Under US Supreme Court decisions, due process permits a court to exercise personal jurisdiction only where the defendant has "minimum contacts" with the state where the court sits. However, this provision may be more difficult to apply than others in the SPEECH Act. There is division among US courts as to whether there is personal jurisdiction over a defendant where only a few copies of a challenged publication entered the forum state. They also disagree as to whether a defendant can be haled into a court in a state where the publication can be viewed on the internet, with the decision often turning on whether the defendant "targeted" readers in that state.
Under Section 230 of the US Communications Decency Act, interactive websites such as Yahoo! or newyorktimes.com are immunised from defamation liability where they merely host or permit the posting of statements created by third parties (as, for example, in comments sections). The SPEECH Act extends this principle, barring enforcement of foreign defamation judgments against such providers unless they would be liable if the information had been provided in the US.
One element that was in early versions of the bill, but was eliminated from the final Act, was the so-called "clawback" that exists in the New York anti-libel tourism law. This relaxed jurisdiction requirements, and allowed the US judgment debtor to sue the plaintiff for three times the amount of the libel judgment. The Congress declined to provide this clawback for the moment. The House Report noted the comity problems, and that it might lead to foreign countries authorising counter-countersuits. More significantly, the Report noted the prospects for libel reform in Britain, pointing to expansion of the Reynolds privilege in the leading Jameel case, and the ongoing UK parliamentary debates referenced above. However, the House Report left open the possibility of "more aggressive measures to address libel tourism" if UK libel reform efforts fail.
The defamation reforms discussed in Duncan and Sarah's article are not likely to restore enforceability of UK libel judgments in US courts. They would not shift the burden of proving falsity to the plaintiff or require that a "public figure" plaintiff prove that the defendant acted with knowledge or reckless disregard of falsity. Both of these elements have been held by the US Supreme Court to be required by the First Amendment. Moreover, if UK courts continue to issue libel judgments against US authors and publishers based on incidental publication in the UK, or the fact that a statement can be accessed via the internet, Congress may well enact the "more aggressive measures" envisioned in the House Report.
Finally, the immunity provided by the SPEECH Act will be of little consolation to American publishers that maintain substantial assets abroad, against which a UK libel judgment can be enforced. As a result, despite the SPEECH Act, the threat of a UK libel suit may continue to chill the publication of controversial books and articles in the US.