"Libel Tourism" to London Faces Extinction – like Dodo Bird     Print Email

Traditional British Law Overtaken by Evolution of Globalizing Realities

British libel law, according to The Economist, means in practice that “anyone anywhere in the world who can prove that someone in England has bought, read, or downloaded potentially defamatory material about them can start a court case.” That’s unique – and that jurisdictional sweep is not the end of it.

The point is that London provides a uniquely uneven playing field in which the plaintiffs almost always win and defendants (including the media) face uphill battles in justifying their positions – and then face steep damages, even in cases where scant real harm can have been done because almost no one in Britain has read the offending item.

Once a lawsuit is under way in the British courts, the burden of proof in libel cases is on the plaintiff. Under British law, the defendant faces a very high bar to clear in defending the truth and value of the contested publication -- or else face paying expensive claims for damages. In other words, “the greater the truth, the greater the libel,” according to old axiom of the British approach to libel. It is the extreme opposite of the U.S. approach – that the truth of an accusation defends the right to utter it in public. This view of the public good has been adopted in varying degrees nearly worldwide (with exceptions such as Singapore). As a result, London, with its unique attitude, has become the venue of choice tempting for foreigners who feel libeled anywhere to come to London to press their charges.

As a result, London has earned the nickname of “A Town Called Sue” amid an explosion of “libel tourism.” From all over the world, politicians, businessmen, and celebrities flock to London (or send their lawyers) to file libel suits in Britain's High Court, where the odds are stacked for the alleged victim and heavily against publishers of all sorts of media (although not yet the web). Increasingly at risk of being confronted in this omnivorous jurisdiction are publishers of books or newspapers or magazines in foreign countries, who can see themselves hauled into a London libel court if the plaintiff can establish even tenuous grounds for damages. If even a few people have had access to a publication that appears in tiny numbers in London, British libel courts are ready to claim jurisdiction and try the case. This pattern has made London a “destination” for people seeking to prove that they have been “libeled” – for damages or perhaps just for vindication that they can obtain nowhere else except in the British system. Libel cases in Britain reached a record high of 259 in 2008 -- up 20 percent from two years ago, another gain in a steady trend of growth, especially among foreign plaintiffs. There is a similar upward trend in the amount of damages awarded to victorious plaintiffs who get their day of court in London and win.

This “tourism” may be good for British litigators (and high-end London hotels), but it has come to be seen as little better than harassment in much of the rest of the world.

The anomalies of this apparently antiquated system have become so egregious that moves are afoot now to change the law and curb the practice. What has prompted the change? One factor causing British discomfort has been the statistical evidence (released in late 2009) about the trend for London to become a singular venue for such cases, i.e. the prime destination for “libel tourism.” The British practice has also faced increasingly biting criticism from U.S. courts. The upshot is that the House of Lords (which constitutes Britain's “supreme court”) is considering a new law that would require plaintiffs to demonstrate that they have suffered “actual harm” in Britain before they can seek redress through litigation in the British courts.

The effects of this practice, which British journalists have long been accustomed to, now range much farther: they can ensnare writers anywhere, who can find themselves exposed to the special British risk of punitive damages if their writing has appeared in only a few copies in London. The stringency of Britain’s libel law has proved damaging to academic dialogue, including cases outside the United Kingdom. For example, a U.S.-based researcher, Dr. Rachel Ehrenfeld, is currently facing a suit in British courts by Saudi billionaire Khalid bin Mahfouz, about a U.S.-published book of hers that sold a total of 23 copies in Britain. Passages in the book, “Funding Evil,” accuse the banker of channeling funds to Al Qaeda. The author declined to appear in court, but she was nonetheless convicted and ordered to pay $225,000 in damages. In response, the state of New York passed legislation making it hard to enforce English libel judgments.

Members of the House of Commons label the law “perverse, unfair, prohibitively expensive, [and] contemptuous of free speech.” Reactions have become increasingly vehement in the U.S.: leading States, including California, have passed laws nullifying libel rulings from British courts. News corporations on both sides of the Atlantic have also expressed exasperation with the current system and threatened to halt sales of their material in Britain and to set up firewalls on their websites so that the Britain-based users cannot access their material. This situation imposes a disservice on British readers – one that seems unrelated to Britain’s own system of protecting individuals or companies from slander. Ultimately, the increasingly globalized world and the proliferation of online information seem to have exposed the need for reform of some out-dated aspects of Britain’s libel laws.