The libel laws in England? They’re broken. They’re not fit for purpose. Only the rich can afford to sue. Only the rich can afford to defend themselves against libel law suits. The burden of proof is skewed in favour of the plaintiff in this country to the extent that we have libel tourism. As George Monbiot wrote, “England’s mediaeval libel laws are becoming a global menace to free speech”.
To quote further from Monbiot’s article:
the libel laws of England and Wales are tilted so heavily against the defendant and involve such monumental costs that they amount, in effect, to censorship by private interests: a sedition law for the exclusive use of millionaires. While in the United States the plaintiff must prove that the claims against him are false, in English law the defendants’ claims are presumed false until proven otherwise: he has to demonstrate his innocence. If his defence fails, he must pay both costs and damages.
Our libel laws are so attractive to plaintiffs that libel tourism is now common in the UK, our press is vulnerable (to suits from the rich), and the wealthy are shielded from criticism. None of this is new: it’s been said before by people like Geoffrey Wheatcroft and Marcel Berlins. I urge you to follow the links and read the full articles, but I reproduce below some of the passages I find myself in agreement with.
As Wheatcroft wrote:
In recent decades, “libel tourism” has become a lucrative trade for London lawyers. Foreign celebrities turn up to sue British papers or US magazines with insignificant British circulations. […]
Our libel law has always been heavily weighted in favour of the plaintiff. Unlike the defendant in a criminal case or other civil suits – or in a US libel action – he is assumed to be in the wrong, and must prove that “the words complained of” are true. […] “True as to fact or fair as to comment” are the classic defences, but fair comment is subjective, and any attempt to justify or prove truth can be held to aggravate the gravity of the libel. And a defendant is at the mercy of the caprice of juries and the malice of judges. […]
In Britain, we now have the worst of all worlds. Obscure people are hounded by the gutter press, but the libel laws shield “malefactors of great wealth” from criticism and make our courts a playground for the international rich. The Reynolds rule, like so many recent checks on an oppressive state, came from judges rather than parliament, but it really is time for comprehensive legislation, a new Fox’s Libel Act. This would provide a statutory defence of public interest. It would remove the burden of proof from the defendant. It would end the nonsense of a person from one foreign country suing in London a person from another over something published in a third country. And better still, it would assimilate libel to slander, where the plaintiff must show actual material damage suffered.
The only trouble is that laws have to be passed by parliament. And there are few people keener on using and abusing the libel courts than politicians.
Berlins, meanwhile, wrote that:
The libel laws of England, compared to those of just about every other country in the world, are particularly friendly to claimants. The procedures are relatively simple and the rules of evidence favour the alleged victim of the libel. In particular, it is for the writer or publisher to prove that what was written was true – not for the claimant to prove that the allegations were false.
Berlins’ suggested solution?
The only way to redress the balance which so favours claimants is to change the laws of defamation in England and Wales . That reform should start with reversing the burden of proof. If you claim to be physically injured and bring a legal action, you have to prove your injuries. If you claim you’ve been libelled, the law should make you prove that what’s been written about you is false.
I’ve emailed my MP to let him know my views on the libel laws in this country. If you wish to do the same, you can contact your MP via theyworkforyou.com.
I have written to you previously on the subject of the libel laws we are subject to in this country. I am writing again in the hope that I might convince you to modify your view that the libel laws are “probably about right” as they currrently stand.
The libel laws of England and Wales are skewed against the defendant to such an extent and involve such monumental costs that libel tourism is now common and we also have a situation in this country where only the rich can afford to sue and – perhaps more pertinently – only the rich can afford to defend a lawsuit of this nature. As Geoffrey Wheatcroft once wrote: “In Britain, we now have the worst of all worlds. Obscure people are hounded by the gutter press, but the libel laws shield “malefactors of great wealth” from criticism and make our courts a playground for the international rich.”
In the United States the plaintiff must prove that the claims against him are false, but in English law claims made by the defendants are presumed false until proven otherwise. This has the effect that the defendent must demonstrate his innocence, a situation I consider unjust and a burden on free speech.
I would be in favour of a new libel act. One that provides a statutory defence of public interest*. One that would remove the burden of proof from the defendant. One where the plaintiff must show actual material damage suffered.
*I believe that the press should be free to write stories that are in the public interest, I also believe that what is “in the public interest” needs to be better defined. I think that, while most stories claimed by journalists and editors to be “in the public interest” should probably more correctly be referrred to as “stories of interest to the public”, we should aim to protect the ability of journalists to write stories that expose malpractice, corruption and other forms of wrongdoing – stories that are genuinely written “in the public interest”.