Memorandum submitted by (in alphabetical order):

 

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, 8 national and 4 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 5 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 (i.e. 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 - i.e. 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 (i.e. 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 e.g. 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 - e.g. 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 (e.g. 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.

March 2009



[1] Duke of Brunswick v Harmer (1849) 14 QB 185

[2] "Not a decision that would be made today" per Lord Justice Sedley Yousef Jameel v Dow Jones & Co Inc; [2005] EWCA Civ 75

[3] Berezovsky v Forbes 2000 EMLR 643 at 666, per Lord Hoffman.

[4] Bachchan v India Report Publications 585 NYS 2d 661 (1992)

[5] See Schapira v Ahronson 1999 EMLR 735

[6] Unreported December 2nd 1997, Morland J

[7] 1999 EMLR 724, CA

[8] 2000 EMLR 643

[9] See A Comparative Study of Costs in defamation Proceedings Across Europe; Centre for socio-legal studies, University of Oxford, December 2008.