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Westminster Hall

Wednesday 17 December 2008

[Mr. Frank Cook in the Chair]

Libel Laws

Motion made, and Question proposed, That the sitting be now adjourned.—(Mark Tami.)

9.30 am

Frank Cook (in the Chair): The first topic for consideration today is the operation of the libel laws. As I have no specific knowledge of what aspects of the subject are to be put before us, I thought it advisable to refer to “Erskine May”. Its advice is as follows:

I am not saying that anyone will be so indiscreet as to do that. To do so, the decision must be based on a substantive motion to be placed before the House. We do not have time for that, but I am sure that everyone will bear in mind the advice that I offer. I call Mr. Denis MacShane.

Mr. Denis MacShane (Rotherham) (Lab): Thank you, Mr. Cook. Believe me, I have no intention of transgressing your wise suggestions.

I start with a short anecdote. I have just returned from Washington. With other Members of this House, I attended a meeting of the NATO Parliamentary Assembly. You, Mr. Cook, will be well aware of its workings, as you are a distinguished member of the assembly. We were invited to a reception at the Congress building on Monday night by Nancy Pelosi, the Speaker of the House and a dear friend of many of us. She took us to Congress and led me to sit in the Speaker’s chair in the House of Representatives.

As a political tourist, I found that most interesting. As I sat there, I reflected on this morning’s debate, because Congress is poised once again to pass a new law to protect its citizens and all who live there—but from what? To protect them from this, our country, Britain. As in the 18th century, the British establishment is seeking to silence Americans who want to reveal the truth about the murkier goings-on in our interdependent world. I speak not, I am glad to say, about the Government but about the English legal system. Lawyers and courts are conspiring to shut down the cold light of independent thinking and writing about what some of the richest and most powerful people in the world are up to.

The practice of libel tourism as it is known—the willingness of British courts to allow wealthy foreigners who do not live here to attack publications that have no connection with Britain—is now an international scandal. It shames Britain and makes a mockery of the idea that Britain is a protector of core democratic freedoms. Libel tourism sounds innocuous, but underneath the banal phrase is a major assault on freedom of information,
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which in today’s complex world is more necessary than ever if evil, such as the jihad ideology that led to the Mumbai massacres, is not to flourish, and if those who traffic arms, blood diamonds, drugs and money to support Islamist extremist organisations that hide behind charitable status are not to be exposed.

I put it to the House that it is unbelievable that the state legislatures of New York and Illinois, and Congress itself, are having to pass Bills to stop British courts seeking to fine and punish American journalists and writers for publishing books and articles that may be freely read in the United States but which a British judge has decided are offensive to wealthy foreigners who can hire lawyers in Britain to persuade a British court to become a new Soviet-style organ of censorship against freedom of expression.

Richard Ottaway (Croydon, South) (Con): For a libel action to be successfully mounted in the United Kingdom, there would have to be a libel in the UK. All the laws in the world passed by the United States cannot stop that happening. Would the hon. Gentleman not agree?

Mr. MacShane: That is self-evident, but the US is seeking to protect its citizens and those who reside there who write and publish material that would not be defamatory and that would be protected by the first amendment from facing heavy fines and heavy awards of costs in British courts that would then render it impossible or dangerous for such writers to travel to Britain. That is unacceptable between the two great countries of the Euro-Atlantic alliance.

Richard Ottaway rose—

Mr. MacShane: I wonder whether the hon. Gentleman might make his speech in his own time.

It is worrying that 30 non-governmental organisations recently met human rights lawyers to express concern that libel tourists come to London to prevent the publication of NGO reports on parts of the world and individuals that, of course, rarely get much coverage in our newspapers. NGOs are an important source and conduit of information that is of interest to public policy and to the broader public, telling us what is going on and who is doing what to whom in parts of the world. These things need exposure. The NGOs are meeting lawyers because, thanks to libel tourism, some of the individuals mentioned in their reports can come here and attack those publications, seeking redress against distinguished organisations such as Human Rights Watch.

We all know that the libel laws in Britain have always been the plaything of the rich. Too many editors believe that destroying people by revealing aspects of their private lives helps sell newspapers. I shall not abuse parliamentary privilege—although, Mr. Cook, “Erskine May” does not extend the protection that you quoted to newspapermen—by describing the sexual antics and peccadilloes of newspaper proprietors, editors and journalists. [Hon. Members: “Go on!”] Well, it is Christmas and I shall not be tempted down that path.

If the editors of the Daily Mail or the News of the World, or Mr. Murdoch or Lord Rothermere, ever suffered the invasion of privacy and the pestering of children and family and friends to gain tittle-tattle gossip of the sort that they inflict on others, they would
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be first in line to demand even stronger laws to protect privacy when no public interest or illegal wrongdoing was involved.

Successive Governments have shied away from reforming libel and privacy laws, for fear of upsetting media friends. Stanley Baldwin was the last Prime Minister to have the courage to denounce the bullying behaviour of newspapers and their ideological crusades masquerading as news reporting, with his famous description of our papers enjoying

The Press Complaints Commission is utterly toothless, and its code of conduct is treated with contempt by the very editors who serve on it. The National Union of Journalists has a better code of conduct, but proprietors and editors refuse to co-operate with the NUJ to uphold high standards. No one wants to dictate who can or cannot be a journalist. As it is, too many decent journalists face unemployment as the economics of publishing printed media become difficult, if not impossible.

We need a small claims libel court, or the defamation equivalent of an employment tribunal for the poor and vulnerable who are traduced by the press. We need limits on what a libel court can award by way of damages.

Mr. Edward Garnier (Harborough) (Con): Is the hon. Gentleman not aware of the summary jurisdiction of the High Court in these matters?

Mr. MacShane: Yes, I am. The hon. and learned Gentleman, of course, is an adornment to the libel bar. I am sure that we will be given many insights into its operations when he speaks in his capacity as the Opposition spokesman.

There is no possibility of people securing a quick apology and redress. I believe that there should be no conditional fees except for those on modest incomes. Indeed, I would go so far as to say only those eligible for legal aid should be allowed conditional fees.

Richard Ottaway: Why?

Mr. MacShane: From a sedentary position, the hon. Gentleman asks why. Conditional fees are now being used to stack up multi-sum costs, with lawyers being completely out of control in what they charge. All that falls on the defendant if a single judge finds in favour of the plaintiff. Perhaps only one or two other countries work like that.

The object of going to court is not to make it a racket for lawyers. The object should be to obtain a correction or an apology with due prominence and not to make mammoth financial gains. A time limit should be put in place for seeking redress, so that after the passage of, say, six months or a year it would no longer be possible to sue a publication or internet site. Newspaper editors and internet comment sites and blogs also have to accept responsibility. Too much is published in too many parts of the world that breaks all the deontological rules of journalism, and too many powerful politicians
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adopt the late General de Gaulle’s view that news broadcasts and television should always reflect the views of the state.

A particular problem surrounds internet blogs. Even on a well-run site, such as The Guardian comment is free site, the editors allow anonymous hate mailers to defame and insult people in a frightening manner. A simple rule might be to demand the publication of names and addresses, except where for good reason, as in a newspaper letters column, a name and address is withheld. Internet anonymity is now used too much to protect hate speech and defamatory insults.

Much of that, however, cannot be regulated in one country alone, but requires a global sense of responsibility. In the meantime, the purpose of today’s debate is to stress the need for urgent action to stop London being the world centre for assaults on freedom of expression. The US Congress, where I was on Monday night, now proposes to legislate through its Free Speech Protection Act 2008, which is expressly designed to protect Americans from British courts and judges seeking to curtail freedom of expression.

The case arises from the Kafkaesque position of the writer Rachel Ehrenfeld, whose book, entitled “Funding Evil”, examined the flow of money towards extremist organisations that preach the ideology of hate associated with Wahabism and other democracy-denying aspects of fundamentalist Islamic ideology. It is not exactly a secret that a great deal of the money that has financed fundamentalist extremist organisations that support jihad has come from Saudi Arabia. Ms Ehrenfeld’s book, which was published in America, not Britain, named a Saudi billionaire called Mr. Khalid bin Mahfouz. Although the book was published in the United States, and was not on sale in any British bookshop, he found lawyers to sue in Britain. A British judge imposed a fine and costs on Ms Ehrenfeld, and said that her book should be destroyed, even though she was not in the court. No American court would have entertained such overt censorship.

The fullest examination is vital of those raising money, sometimes ostensibly for charitable work, but which ends up promoting fundamentalist ideology that scrambles young men’s and boys’ minds and leads them to become terrorists. There is no freedom of expression in Saudi Arabia, so it is the duty of others to expose what is happening. With the help of British libel lawyers, Mr. Mahfouz has launched 33 suits against those who are investigating this important area of public concern. Cambridge University Press was obliged to pulp its book “Alms for Jihad”, written by Robert Collins and J. Millard Burr, rather than face a libel action in British courts, which seem at the moment to side with those who finance extremism rather than those who seek to curb it. The case of Mr. Nadhmi Auchi also comes to mind. What is happening when Cambridge University Press, not some odd, little, obsessive publishing house, but one of the flowers of British publishing for centuries, has to pulp a book because British courts will not uphold freedom of expression?

A Tunisian has used the British courts to sue the Dubai television network, al-Arabiya, which broadcasts in Arabic. Last November, a British judge awarded the man £165,000 without al-Arabiya being in court. Mr. Mohammed Sawalha attacked this summer’s celebrations of the 60th anniversary of the state of
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Israel and referred to the “Jewish evil” in Britain. That was reported on the political website, Harry’s place, and immediately Mr. Sawalha threatened to sue. At a time when we need the maximum examination of who is financing ideology that leads to terrorism, we find that British courts, judges and lawyers are acting in the opposite direction to silence investigations. I doubt whether any of the lawyers, the judge or court officials in question can read Arabic or have any real acquaintance with Wahabism or Islamic fundamentalist ideology, and yet they act as defenders of those who promote extremist ideology, not those who try to expose it.

After the scandal of London being the home to many preachers of hate and militant Islamist ideology, in the 1990s and into this century, against whom the British authorities refused to move until July 2005, when the scales were lifted from some, but not all, eyes, another part of the British establishment—judges and lawyers—are protecting those accused of funding anti-democratic ideology and seeking to punish those who expose this evil. Quite rightly, American law-makers have moved to protect their citizens against such extraordinary decisions by the British legal system. Rather than allow the US Congress to pass laws to uphold freedom of speech, the House of Commons should move to outlaw libel tourism.

Moving away from ideology, the surreal nature of libel tourism can be found in the case of the Danish paper, Ekstra Bladet, which found itself being sued by the Iceland-based bank, Kaupthing, after it criticised it. Kaupthing’s default has caused distress to British savers, and every Member will have a constituent who has lost money and is very concerned. The collapse and wrongdoing of Kaupthing might be about to return Iceland to a rural economy. One would have thought, therefore, that exposure of the bank’s practices would have been in the widest public interest, but no. The British libel firm, Schilling and Lom—it certainly made plenty of shillings out of this case—which seems to specialise in touting for business, along with the infamous Carter-Ruck, acted for Kaupthing in London on the grounds that the articles critical of Kaupthing were available on the web. Again, one might have hoped that a British judge would have simply thrown out the case, but of course libel law is a very lucrative business for those small numbers of solicitors and barristers who practise it.

Consideration needs to be given to the role of one particular judge. I shall not name him, because he is an honourable man, but it cannot be right that one area of law is principally in the hands of a single judge. There are not three or four judges discussing this and thereby creating a kind of common law, in which different opinions can be challenged.

I could cite further examples of rich Russian and Ukrainian oligarchs criticised in publications with no, or nugatory, circulation or presence in the UK, mainly through the web, using British courts to seek to close down or attack their critics. I am informed that there will be a ruling today about an article in TheNew York Times in a case brought by a plaintiff here in London. I do not know what the result will be, but why on earth is a British judge deciding on, or even hearing, a case against one of the world’s great papers, simply because the plaintiff does not have the courage to take his case to, or knows that it would not stand up in, a New York court?

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We need to end libel tourism. It would be helpful if the Law Society investigated the behaviour of firms such as Schilling and Lom and Carter-Ruck, because actively touting for business is a serious problem. It will require legislation in our Parliament, not in the US Congress, to bring libel tourism to an end, and I welcome the Culture, Media and Sport Committee’s decision to hold an investigation into libel law. However, will the Minister examine whether the draft Civil Law Reform Bill, which the House will deal with in this Session, could include a small clause on libel tourism? Such a clause could assert that any action for defamation in a British court would require that the publication be based in the UK and that the plaintiff have a strong connection with the UK. The old legal doctrine of forum non conveniens needs to be asserted—people should sue in the country where the publication was issued and of which they are a citizen. Damages should not be greater than £10,000 and costs should have to be met by the plaintiff with conditional fees available only to those who would qualify for legal aid. Furthermore, reference to a link or some other publication would not be grounds for a libel action. Such a clause could go further and enshrine in law the so-called Reynolds ruling, which allows a defence of public interest in reporting on individuals. A plaintiff should have to prove malice and a reckless disregard for the truth, to paraphrase US defamation law. In these times when swindlers have been allowed to create their pyramids of debt, we need stronger journalism and judges who defend the public’s right to know and not the lawyer’s right to use the law to maximise his profit on behalf of causes that are not worthy of consideration by a British court.

I am grateful to have been awarded this debate. I will listen to comments from hon. Members and from the Opposition spokesman, the hon. and learned Member for Harborough (Mr. Garnier), who, as I said, is himself one of the adornments of the libel Bar in Britain. British citizens deserve protection against the lies and invasion of privacy that some of our newspapers indulge in, but Britain should not be a new world centre in which wealthy foreigners can seek redress against writers of publications that have little connection with our country. It is time for libel tourism to be ended, and it is better if the House of Commons and not the US Congress takes in hand the necessary reforms to stop this practice that shames our democracy.

Frank Cook (in the Chair): The protocol of 90-minute debates in this Chamber requires us to start the first of the three wind-up speeches at 10.30. That means that we have 39 minutes between now and then, and I have five individuals seeking to catch my eye. I ask those Members to bear the time limitations in mind when they make their speeches, and also when they accept or respond to interventions.

9.51 am

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