3 Libel and Press Freedom|
114. In this section we discuss how the UK's libel
laws operate in practice and the effect they have on press reporting.
We consider important recent cases and developments since the
1996 Defamation Act, including the defence of 'responsible journalism',
the Government's consultation on the issue of 'multiple publication'
in the internet age and legislation to abolish criminal libel.
We also examine the international context, including the controversy
surrounding so-called 'libel tourism' or 'forum shopping'.
115. Throughout this discussion we remain mindful
of the over-arching concerns about the costs of mounting and defending
libel actions, and the 'chilling effect' this may have on press
freedom. Such is the importance of these concerns, we specifically
examine the subject of costs, including conditional fee arrangements
and the 'offer of amends' procedure introduced by the 1996 Act,
in the following section of this report.
116. We also recognise that the UK does not have
a written constitution with a First Amendment protecting freedom
of speech as the US does, nor in the foreseeable future is it
likely to have one. Our recommendations in this section are therefore
aimed at being practical and influencing the law as it stands
in the UK.
The development of our libel
117. In an action for libel the claimant has to prove
that the statement is defamatory, a term defined by Lord Atkin
in 1936 thus: "A defamatory statement is one which injures
the reputation of another by exposing him to hatred, contempt,
or ridicule, or which tends to lower him in the esteem of right-thinking
members of society."
The claimant must also prove that the statement refers to him
or her and that it was published to a third party. Significantly,
the claimant does not have to prove the statement is false. The
burden of proof now shifts to the defendant, who must prove that
the defamation was justified by the facts - i.e. that it was substantially
true - or else employ another defence, such as that it was fair
comment or that the statements concerned attract privilege (see
paragraphs 130 to 145).
118. A claimant - be it an individual or company
- does not have to prove actual damage to reputation, nor financial
loss. Some damage is presumed to have been suffered. It is, however,
open to a claimant to seek 'special damages', in order to recover
actual financial loss.
119. Libel actions are heard in the High Court, with
libel being one of the few areas of civil litigation with the
right to a jury trial. For many years libel in England and Wales
could also be a criminal matter, but this had become extremely
rare and in November 2009 criminal libel was removed from the
120. The law in this area has largely developed case
by case and Parliament has been reluctant to legislate, but the
Defamation Act 1952 made a number of changes, including an 'offer
of amends' procedure where the defamatory statement was 'unintentional'.
An offer of amends procedure allows for a swift apology without
trial. If the offer is not accepted, then the fact the offer was
made may mitigate any damages. Aiming to encourage "swift
and less costly disposal of defamation claims",
the Defamation Act 1996 extended the availability of the offer
of amends procedure to all defamatory statements. It also introduced
summary disposal of claim where judges could find 'no realistic
prospect of success'.
The Act also created an 'innocent publisher' defence, giving protection
to internet service providers.
121. According to Ian Hislop, editor of Private
Eye, the Defamation Act 1996, together with the Woolf reforms
on civil litigation, have benefited the media:
"A lot of amendments were made about ten
years ago [...] and a number of elements of the libel lottery
were changed I think greatly to the good of the whole system,
so it is possible to change things and to get them right and I
would say I am less sued now for libel."
122. Damages in libel cases are much lower than in
the past. Until the mid-1990s juries in libel trials were free
to set the level of damages and this resulted in some very high
payouts. In 1989, the wife of Peter Sutcliffe, the 'Yorkshire
Ripper', was awarded £600,000 against Private Eye,
though that figure was later reduced by the Court of Appeal, which
described it as 'so unreasonable as to be divorced from reality'.
In 1995, the Court of Appeal held that juries in libel trials
should be given approximate upper and lower limits for financial
awards by judges during the summing up.
The highest award in recent years is £200,000, which was
awarded in 2002 to two kindergarten teachers falsely accused by
a local council of having sexually abused children. The judgment
noted that the award was "now generally recognised to be
the maximum amount for compensatory damages in libel proceedings".
123. Details of out-of-court settlements are frequently
not disclosed but it is clear they can be higher than this. Robert
Murat is reported to have received £600,000 from 11 newspapers
over allegations that he had been involved in the disappearance
of Madeleine McCann.
It was reported that Madeleine McCann's parents received a similar
amount from Express Newspapers.
124. Libel claimants may recover exemplary damages
where the court awards 'punitive' rather than 'compensatory' damages.
These are rarely awarded since proof of guilty knowledge on the
part of the defendant is required, coupled with the motive of
making money out of the libels.
Bringing and defending a libel
action in the UK
EARLY HEARINGS ON MEANING
125. Establishing whether the meaning of a word or
phrase is defamatory is frequently at the heart of the libel process.
A statement can be defamatory in two ways. The 'natural and ordinary'
meaning of the words may make it so, or it may be defamatory by
innuendo, meaning that readers with special knowledge would interpret
it that way. When bringing a case, the claimant is required to
set out the words complained of and the defamatory meaning he
or she believes they convey. If the defendant disputes this, the
task of determining whether the words bore the meaning alleged
by the claimant falls to a jury at trial, unless the parties have
agreed to its determination by a judge.
126. Resolving the issue of meaning can take a long
time and be expensive. Alan Rusbridger, editor of the Guardian,
told us that one of the changes to the current framework that
would be "top of his list" was "early ruling[s]
on meaning which could be taken by judges not juries".
127. In evidence to us Sir Anthony Clarke, the then
Master of the Rolls, acknowledged that preliminary rulings on
meanings reduced costs and noted that judges have case management
powers to make such rulings:
] the courts have powers to take
individual issues and to decide them separately from the other
issues and, as far as I am aware, it is not uncommon to have a
preliminary issue on the question of meaning, and indeed I myself
was involved, I seem to remember, in an appeal in relation to
meaning where the only question was whether the meaning, which
the claimant said the words had, was a meaning which was open
to that, so yes."
128. Rulings on meaning, however, may clearly not
satisfy all defendants. We have received evidence,
for example, on the case of the science writer Simon Singh, who
is being sued for libel by the British Chiropractic Association
(BCA) over an article published in 2008, which was critical of
treatments dispensed by BCA members. In a preliminary hearing
on meaning in May 2009, Mr Justice Eady ruled that the wording
could be held to imply the BCA was being consciously dishonest.
Mr Singh denies he intended this and the Court of Appeal has since
given him permission to contest the ruling - a lengthy process
which has so far cost Mr Singh more than £100,000.
129. We have received limited evidence on hearings
on meaning and the extent to which they are used. We agree, however,
that any measures to provide more certainty at an earlier stage,
and which cut the enormous costs of libel cases in the UK, should
be pursued more vigorously. We urge the Government, therefore,
to look closely at this aspect of procedure in its present review
of the costs and operation of UK libel laws.
DEFENDING LIBEL ACTIONS - JUSTIFICATION
AND THE BURDEN OF PROOF
130. The defence of justification requires the defendant
to prove that the words complained of were true or substantially
true. Whether or not this is difficult, at law it is likely to
be complex, time-consuming and expensive. It will frequently require
a full trial as well as preliminary hearings on issues such as
disclosure and evidence. A recent example was the case brought
by Richard Desmond, proprietor of Express Newspapers, against
Tom Bower, the author of a 2006 biography of Conrad Black, former
proprietor of the Telegraph Media Group.
Mr Desmond's claim focused on passages of the book which described
his relationship with Mr Black. Mr Bower pleaded justification
and his plea was upheld, but only after a full jury trial lasting
three weeks Unusually, the Bower case featured two expensive appeals
in mid-trial against rulings by the judge - Mr Justice Eady again
- over admissibility of evidence. Each time, the author claimed
key, relevant evidence about Mr Desmond's reputation was being
excluded. On both occasions the Court of Appeal upheld Mr Bower's
claim. It was also severely critical of Mr Justice Eady's rulings
which - Lord Justice Hooper said during the second appeal - "would
risk the possibility of a miscarriage of justice."
131. A particular concern we heard from media witnesses
in the UK and lawyers and media representatives we met in America
was the requirement that the defendant in a defamation case bears
the burden of proving the truth of the allegations sued on. In
oral evidence to us, Tom Crone, legal manager for News Group Newspapers,
"I must say, over the last 29 years I have
found that to be a very, very onerous burden indeed for newspapers
to shift, especially - and this is just human nature and perception
- if you happen to be the Sun or the News of the World.
They are the two newspapers I represent. I think it is wrong because
I think the burden is too great, frankly."
132. Alan Rusbridger gave us two examples where the
burden of proof had been difficult or impossible to discharge:
"The two cases most notably we have been
involved [...] are Jonathan Aitken and Tesco. They knew what they
had done, what was going on, and it was up to us to prove to the
standards of [...] the civil court, what had been going on, so
I think the burden of proof should certainly be switched."
133. This proposal is not new, and naturally meets
the response that newspapers publishing allegations should have
to hand good evidence that those allegations are correct. In 1999,
in Steel v McDonald's, the Court of Appeal rejected the
argument that Article 10 of the ECHR required that the burden
of proof should be reversed when a defence of justification had
been entered, a finding that was upheld on appeal to the European
Court of Human Rights. We discuss McDonald's and the more recent
Tesco case, to which the editor of the Guardian referred,
in more detail in the section 'Corporations and defamation' below.
134. One significant difficulty in reversing the
burden of proof in defamation cases is that it would often require
claimants to prove a negative. A pertinent example is that of
Kate and Gerry McCann, libelled repeatedly by the press, who would
have been required, under a reversed burden, to prove that they
had not allowed harm to come to their daughter.
135. We recognise the difficulties with the whole
burden of proof being placed on the defendant but believe, on
balance, that in the interests of natural justice, defendants
should be required to prove the truth of their allegations. We
are concerned, however, to see cases where that burden becomes
overly onerous. We make some recommendations in this Report regarding
the defence of 'responsible journalism' and the burden of proof
on companies suing for defamation, which may level the playing
field and assist publication in the public interest. We also urge
the Government, however, to examine this aspect of the operation
of the UK's libel laws carefully, including how the courts might
better require claimants to make reasonable disclosures of evidence,
without increasing costs even further through expensive appeals.
136. The Bower case also highlights concerns which
arise when judges exclude evidence which prevents a jury being
presented with a rounded picture, or too narrow a view of the
thrust of an article. This aspect of the operation of the libel
laws also needs examination.
137. A comment or expression of opinion, based upon
(true) facts, made in good faith and without malice can be protected
from libel. It is distinct from justification because the defendant
is commenting on facts rather than claiming the facts to be true.
A claimant can show malice if the commentator did not genuinely
hold the opinion expressed.
138. The current case involving the scientist and
writer Simon Singh originally involved a comment piece by him.
We have also received written evidence from Sense about Science,
a charitable trust, that the law is stifling debate in the scientific
and medical community about new drugs and treatments.
139. In evidence, Ben Goldacre also told us of his
"I was recently sued by a vitamin consultant
who was selling vitamin pills in South Africa - taking out full
page adverts in national newspapers saying anti-AIDs drugs will
kill you [...]. This was obviously very irresponsible and it was
fairly cut-and-dried to my mind where the evidence stood on whether
vitamin pills or anti-AIDs drugs were better for treating AIDS,
but this was such an enormously long drawn-out process that eventually
by the time he pulled out our costs were half a million pounds."
140. In other jurisdictions, the defence of fair
comment is called 'comment' or 'honest comment', and this is a
better reflection of the actual defence because the question is
not whether the comment was fair or true, merely that it was a
comment made without malice based on some true facts.
141. Much of the recent publicity given to concerns
of the medical and science community about the harmful effects
of UK libel laws on their ability to comment has followed the
court rulings to date in the Simon Singh case and media coverage
of the cases of the British cardiologist Peter Wilmshurst and
the Danish radiologist Henrik Thomson, who have faced action from
overseas commercial interests.
142. We look forward, clearly, to the outcome
of the important Simon Singh case. Even from the limited evidence
we have received, we believe that the fears of the medical and
science community are well-founded, particularly in the internet
age and with the growth of 'libel tourism'. We urge the Government,
therefore, to take account of these concerns in a review of the
country's libel laws, in particular the issue of fair comment
in academic peer-reviewed publications.
143. The law recognises that there are circumstances
in which it is in the public interest to permit greater freedom
of speech. It is a defence to a libel claim if the publication
took place on a privileged occasion. The privilege may be protected
from a libel action either by absolute privilege, which is a complete
bar to libel actions, or qualified privilege, which protects the
statement so long as it was published without malice.
144. Qualified privilege exists 'for the common convenience
and welfare of society because the law accepts that there are
occasions when persons should be at liberty to express themselves
freely even when in doing so a third party is defamed'.
It covers fair and accurate reporting of Parliament, legal proceedings,
organisations of the European Union and other matters set out
in Schedule 1 of the Defamation Act 1996. It is also held to protect
freedom of speech in specific circumstances under the common law
'responsible journalism' defence to a claim in libel.
145. In the case of qualified privilege, malice may
consist in either awareness of or recklessness as to the untruth
of the statement; a dominant improper motive in making a statement;
or misuse of the occasion for which privilege exists.
THE 'RESPONSIBLE JOURNALISM' DEFENCE
146. The 'responsible journalism' defence emerged
during the case of Reynolds v Times Newspapers
in 1999, when the House of Lords held that journalists making
statements that were subsequently found to be defamatory and untrue
were protected in law if the story had been researched and presented
professionally and the subject matter was in the public interest.
The purpose of introducing this defence was to "enable the
court to give appropriate weight, in today's conditions, to the
importance of freedom of expression by the media on all matters
of public concern".
147. In his speech in Reynolds, Lord Nicholls
set out 10 guidelines which, depending on the circumstances, the
courts could use to determine whether the defence applied:
Ø The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true.
Ø The nature of the information, and the extent to which the subject-matter is a matter of public concern.
Ø The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories.
Ø The steps taken to verify the information.
Ø The status of the information. The allegation may have already been the subject of an investigation which commands respect.
Ø The urgency of the matter. News is often a perishable commodity.
Ø Whether comment was sought from the claimant. He may have information others do not possess or have not disclosed. An approach to the claimant will not always be necessary.
Ø Whether the article contained the gist of the claimant's side of the story.
Ø The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact.
Ø The circumstances of the publication, including the timing.
148. Lord Nicholls stated that the list should not be seen as
exhaustive, or as replacing the role of the jury (if the case
was a jury trial) in establishing the facts. He expressed the
hope that "over time, a valuable corpus of case law will
be built up".
149. Seven years later, in Jameel v Wall Street
Journal, the House of Lords had an opportunity to consider
the effectiveness of the responsible journalism defence.
Lord Hoffmann commented on the difficulties of applying it in
"In Reynolds, Lord Nicholls gave
his well-known non-exhaustive list of ten matters which should
in suitable cases be taken into account. They are not tests which
the publication has to pass. In the hands of a judge hostile to
the spirit of Reynolds, they can become ten hurdles at
any of which the defence may fail. [
] that, in my opinion,
is not what Lord Nicholls meant. As he said in Bonnick (at
p309) the standard of conduct required of the newspaper must be
applied in a practical and flexible manner. It must have regard
to practical realities."
150. The law lords concluded that the lower courts
had been interpreting the guidelines too strictly, and effectively
broadened the defence by explicitly stating that the 'ten matters'
were guidelines and not hurdles which had to be overcome in turn.
In 2007, in the case of Charman v Orion Publishing Group Ltd,
the Reynolds defence was successfully used to cover a book,
when the Court of Appeal dismissed a libel suit brought by a former
police officer over a book Bent Coppers - The Inside Story
of Scotland Yard's Battle Against Police Corruption by journalist,
151. We have received evidence that despite the widening
of the defence through the Jameel judgment, it is still
difficult for the press to rely on it in practice. Marcus Partington
of the Media Lawyers Association complained of an inflexibility
amongst judges when applying what was intended to be a flexible
test, fitted to circumstance:
"The ten tests that were introduced were
supposed to be quite loose, but the feeling is that they will
be potentially rigidly adhered to; so unless you feel that you
have passed through each of the ten tests without fear of being
attacked by the other side, you are wary about using the defence."
152. Keith Mathieson of Reynolds Porter Chamberlain
LLP, which normally takes cases for defendants, cited cost as
a barrier to using the defence:
"It is quite an expensive defence to run
in practice because it means enquiring into precisely how a story
was put together, and that means going out interviewing people
and getting witness statements and all that kind of thing."
153. The costs involved in the defence mean that
defendants have to weigh up the potential expenditure involved
in fighting a case, and the further risk of possibly losing, against
the inevitably lower cost of settling a case. Mark Stephens, of
Stephens Finer Innocent, explained to us that this can be a particular
consideration for NGOs and other not-for-profit organisations:
"The cost of a Reynolds defence is
somewhere between £100,000 and £200,000, plus of course
the risk of losing. You have got an adverse cost risk as well
on top of that. That is the sort of sum of money which NGOs just
cannot afford to spend. Although they have a very good defence
- and invariably that is the advice we are given - they are not
able to deploy it."
154. We heard that, to be in a position to rely upon
the responsible journalism defence, organisations must ensure
that their staff are aware of the elements involved, which costs
both time and money. Charmian Gooch of Global Witness told us
that awareness of the defence is integral to the training of its
staff: "Trying to incorporate Reynolds and
an awareness of Reynolds in all the stages of the research,
and thinking about a report, briefing document or a press release,
every single point of publication, is crucial."
155. Alan Rusbridger told us that, while his paper
was able to incorporate the requirements of the responsible journalism
defence into its investigative journalism, he doubted that local
papers would have the resources:
"We use Reynolds pretty extensively.
There are three or four reporters who have learned to use it and
if you asked them they would say they rely very heavily on the
legal department, so it would not work if you were on the Leicester
Mercury or the East Anglian Daily Times and you did
not have that kind of legal department. You have to work extremely
thoroughly in the way you phrase questions and it is a long,
drawn out, rather arduous way of processing stories, but I do
not think it is all bad. I think it has enabled us to print
a lot of stories that we could not have published in the
past in a different kind of voice, raising questions rather than
asserting things, but we have got a lot of information in
the public domain using Reynolds."
156. It is noteworthy, however, that the newspaper
did not deploy the Reynolds defence in the libel suit launched
by Tesco, to which we return later in this section.
157. The responsible journalism defence was never
intended as a general shield to protect a free press. It will
always be a defence of last resort, first because it will only
be used by defendants who are unable to prove that their facts
are correct, and second because it transfers scrutiny to the journalistic
process. As Keith Mathieson told us, "it shifts the emphasis
of the case from the truth or otherwise of the allegations that
are being sued upon to the conduct of the journalist".
158. Mr Partington warned of the distorting tendency
of hindsight: "There is criticism afterwards: 'Oh, well,
you could have made that telephone call; or you should've looked
at that', rather than actually examining what the journalist did
and being slightly looser about the ten tests."
However Rod Christie-Miller, who normally acts for claimants,
did not agree that judges applied the Reynolds guidelines
"In fact, the case of Jameel in the
House of Lords said the opposite, that it was a flexible test
that should be applied depending on the circumstances of a particular
case. It is a sad day for investigative journalism if (a) the
story is untrue and (b) it was not even put together responsibly."
159. The National Union of Journalists (NUJ) told
us that it welcomed the development of the responsible journalism
defence: "These standards are those the union expects from
its members - checking information, affording a right to comment
and so on. They also effectively set a "public interest"
criterion that is also welcome."
Roy Greenslade agreed:
"I think the key to this is the word 'responsible'.
As journalists we wish to exercise the greatest amount of licence
and freedom, but with freedom comes responsibility and it is about
how we go about our job. Most of what the Reynolds judgment
said was that we should do certain things properly and I think
that that was important in the case of George Galloway v The
Daily Telegraph where the Telegraph had failed to act
responsibly and the reason I believe the judgment was made in
Galloway's favour was because his counsel were able to show that
the paper had behaved irresponsibly."
160. Whether journalists on UK newspapers routinely
check facts to the degree required to enable the use of the responsible
journalism defence is another concern. On major investigations
relating to matters of public interest, reporters, sub-editors
and senior editorial staff may well do their utmost to verify
facts, particularly when they know the subject has the resources
to mount a libel action. However, fact-checking of the kind found
at many American periodicals - a routine process, carried out
independently of the reporters - is not the norm in the UK.
161. We appreciate the difficulties, and costs,
to date in running a Reynolds defence have meant that it
has not often been used in cases which have actually reached court.
Nevertheless, we endorse the development of a 'responsible journalism'
defence by the courts. We particularly welcome the House of Lords
judgment in Jameel which emphasises the need for flexibility
and, in our view, the realistic approach the courts must bring
to consideration of the defence so that it appropriately protects
the media's freedom of expression. However, we are concerned that
the defence remains costly and therefore inaccessible to publishers
with poor financial resources. We will be making a number of recommendations
on costs which we intend should ensure access to this defence
in appropriate cases.
162. We are also concerned that, partly because
of the lack of certainty of a Reynolds defence, many cases
have to be settled before they come to court, and that as a result
there are few opportunities for a body of case law based on Lord
Hoffman's judgment in Jameel to be developed. Indeed, it
may take decades and we are of the view that the problem is more
urgent than that, especially given the challenges facing smaller
regional newspaper groups.
163. The desirability of affording greater protection
to genuinely responsible journalism begs the question of whether
the law should be amended to put the Reynolds defence,
or an expanded version of it, on a statutory footing, perhaps
through an amendment to the 1996 Defamation Act. However, there
is a risk of unforeseen consequences. It could be maintained that
Reynolds/Jameel applied more flexibly is sufficient and
we are concerned that codifying the defence and the 'public interest'
in law may in itself introduce rigidities or make for less accurate
reporting. However it is our opinion that there is potential for
a statutory responsible journalism defence to protect serious,
investigative journalism and the important work undertaken by
NGOs. We recommend that the Government launches a detailed consultation
over potentially putting such a defence, currently available in
common law, on a statutory footing. We welcome consultations already
launched by the Ministry of Justice in the field of media law.
Such a further exercise will provide an opportunity to gain more
clarity and show the Government is serious about protecting responsible
journalism and investigations by the media, authors and NGOs in
the public interest.
Corporations and defamation
164. Under the law of England and Wales, trading
companies which have reputations in this country may sue for defamation
and recover general damages. Since 1993, however, following the
case of Derbyshire County Council v Times Newspaper Ltd,
local authorities, trades unions and unincorporated bodies cannot.
The UK position contrasts strongly with the US, where since the
decision in New York Times v Sullivan in 1964, constitutional
free speech protections have made it very difficult for companies
- as 'public figures' under US law - to succeed in defamation
165. The question of whether companies should continue
to enjoy this right in the UK was raised in the case of McDonald's
Restaurants v Morris & Steel, commonly known as the McLibel
case. In 1990, the fast-food chain sued two environmental protesters,
Helen Steel and David Morris, over allegations made in leaflets
distributed mainly outside McDonald's restaurants. McDonald's
at the time was a company known to have frequent recourse to libel
law. Ms Steel and Mr Morris conducted their own defence, winning
in part, but only after nine years of legal proceedings. McDonald's
was awarded £40,000 in damages, which it did not claim.
166. This very unequal legal contest prompted concern,
and in judgment the Court of Appeal observed that a submission
that corporations should lose their right to sue for libel had
'some substance', though it said this would be a matter for Parliament
167. Such a step has been taken elsewhere. In 2005,
the federal Government in Australia passed legislation preventing
corporations (other than not-for-profit organisations or small
businesses of fewer than 10 people) from suing for defamation.
This was in response to concerns that large companies could stifle
legitimate public debate by initiating defamation actions.
168. A major, recent case in the UK was the action
by Tesco against the Guardian in 2008, in which the supermarket
sued for libel - and the editor personally for 'malicious falsehood'
- after the newspaper claimed it was avoiding corporation tax
through complex offshore property deals.
169. It turned out that Tesco's dealings did aim
to avoid tax, but a different one - stamp duty land tax - and
for far less than alleged. Subsequent investigations by Private
Eye, however, found that Tesco had offshore schemes to reduce
corporation tax, too.
170. Before the article, Tesco declined to meet the
reporters and gave limited written responses. In the circumstances,
the newspaper misunderstood the purpose behind the deals, but
the story's thrust - regarding tax avoidance - was correct. In
May, the Guardian nonetheless issued an extensive apology
and explanation of its inaccuracies.
171. Tesco, advised by Carter-Ruck, carried on, however,
notwithstanding an 'offer of amends' from the Guardian (a
subject we discuss more fully in the next section on 'Costs').
In July, in a two-day case management hearing before Mr Justice
Eady in the High Court, Tesco tried to exclude the Private
Eye evidence and keep the 'offer of amends' on the table,
while it pursued the action. The judge ruled against them on both
points and also struck out the action for 'malicious falsehood'.
Two months later, Tesco agreed to a further correction and apology,
and a settlement was reached out-of-court. By then, the costs
had become enormous, dwarfing any damages.
172. In this case, Mr Rusbridger argued - quoting
the landmark American case Sullivan v New York Times
- that the Guardian was guilty of 'erroneous statements
honestly made', but was not afforded the same protections as in
the US. Nor was it helped by Tesco's lack of disclosure, while
it bore the whole burden of proof. "In all other jurisdictions
I know of the burden of proof operates the other way, and quite
173. In evidence to us, Jonathan Coad of Swan Turton
solicitors, on the other hand, did not support restricting or
removing the right of companies to sue for libel.
He told us:
"I think it is perfectly reasonable to say
that there is a finite amount of damages that a large corporation
should be allowed to recover. Let us take an example where a newspaper
says, 'baby milk A is dangerous and you should not drink it and
baby milk B is fine'. It would be extraordinary if there was no
mechanism whereby a company could go in front of a judge and say,
'Well, actually, our baby milk is fine and, by the way, we have
had to lay 500 people off and there is therefore a good reason
for us to come in front of a judge and establish that that is
not true.' It would be an extraordinary state of affairs, it seems
174. The Lord Chancellor also agreed that companies
needed to be able to sue for defamation to protect their reputations.
He told us: "Bodies corporate do have reputations and on
their reputations depend the livelihoods of, in large corporations,
thousands of people and their share price, in which your pension
fund or mine might be invested."
175. There are certainly practical difficulties to
be reckoned with. Global Witness noted that it had experience
of situations where repressive state authorities which were unable
to sue made use of an individual as a 'front person' to act for
them in defamation litigation.
Clearly corporations wishing to exploit libel laws to stifle criticism
could use the same technique.
176. There is no doubt that the effect on a company
of losing its business reputation can be devastating, but it is
also the case that companies often have means, which are not normally
available to individuals, to counter falsehoods and unfounded
criticism through publicity campaigns. Further, individuals at
companies, large or small, who consider themselves defamed can
also sue, funded by their employers, as they still can at local
authorities in the UK.
177. It is clear that a mismatch of resources in
a libel action, for example between a large corporation for which
money may be no object and a small newspaper or NGO, has already
led to a stifling effect on freedom of expression.
178. We hope that Government measures to reduce
costs and to speed up libel litigation will help address the mismatch
in resources between wealthy corporations and impecunious defendants,
along with our recommendations to widen and strengthen the application
of the responsible journalism defence. Given the reaffirmation
by the House of Lords in Jameel of the rights of companies
to sue in defamation, the law could only be changed by statute,
if Parliament felt it desirable to address potential abuses of
libel laws by big corporations. One possible way of addressing
the issue might be to introduce a new category of tort entitled
"corporate defamation" which would require a corporation
to prove actual damage to its business before an action could
be brought. Alternatively, corporations could be forced to rely
on the existing tort of malicious falsehood where damage needs
to be shown and malice or recklessness proved. We also consider
that it would be fairer to reverse the general burden of proof
in such cases. Given the seriousness of this issue, we recommend
that the Government examines closely the law as it now stands,
looking also at how it operates in Australia, and consults widely
on the possibility and desirability of introducing such changes
in the UK through an amendment to the Defamation Act 1996.
179. We now turn to consider matters relating to
jurisdiction and allegations that the UK courts are being used
inappropriately by so-called 'libel tourists' or 'forum shoppers'
- claimants who search for the most favourable rather than the
most appropriate country in which to pursue a case.
180. Some procedures are in place to prevent those
with no good reason for doing so from pursuing claims in UK courts.
If the defendant is outside England or Wales, the court would
normally consider whether it is the correct forum when the claimant
applies to serve the claim outside the jurisdiction, or whether
to rule the case out as forum non conveniens.
The grounds on which permission can be granted are contained
in a practice direction to the court, as follows:
|The claimant may serve a claim form out of the jurisdiction with the permission of the court under rule 6.36 where -|
(1) A claim is made for a remedy against a person domiciled within the jurisdiction.
(2) A claim is made for an injunction ordering the defendant to do or refrain from doing an act within the jurisdiction.
(3) A claim is made against a person ('the defendant') on whom the claim form has been or will be served (otherwise than in reliance on this paragraph) and -
(a) there is between the claimant and the defendant a real issue which it is reasonable for the court to try; and
(b) the claimant wishes to serve the claim form on another person who is a necessary or proper party to that claim.
(4) A claim is an additional claim under Part 20 and the person to be served is a necessary or proper party to the claim or additional claim.
181. The practice direction, as can be seen, is very broad, contains
no guidance on the extent of publication in the UK and places
wide discretion in the hands of the judge considering the application.
182. The decision on whether to grant permission
for a claim to be served outside the jurisdiction is initially
made by a High Court Master (a District Judge sitting in the High
Court). The decision can be appealed to a High Court judge.
183. In addition to seeking permission under one
or more of the grounds under Rule 6.36, a claimant is required
to show both publication in the jurisdiction and that a 'real
and substantial' tort occurred.
A claim can be limited to publication in the UK and the
reputation of the individual in the UK.
184. A court can also refuse to hear a case under
the doctrine of forum non conveniens - which requires the
court consider whether a case could be more suitably tried, for
the interests of the parties and the ends of justice, by the courts
of another country.
185. The leading case on jurisdiction in defamation
cases is Berezovsky v Michaels,
decided by the House of Lords in May 2000. Forbes magazine
published an article describing two Russian businessmen as 'criminals
on an outrageous scale'. Two thousand copies of the article were
published in the UK, as against nearly 800,000 in North America.
Forbes submitted that the House of Lords should require
the case to be held either in Russia, of which the claimants were
nationals and presumably where they had the most widespread reputation,
or in America, where the principal publication had taken place.
The House of Lords disagreed. Lord Steyn described the process
which led him to decide that the claim could be considered by
the UK courts:
"[Firstly] only 19 copies were distributed
in Russia. Secondly, and most importantly, on the evidence adduced
by Forbes about the judicial system in Russia, it is clear that
a judgment in favour of the plaintiffs in Russia will not be seen
to redress the damage to the reputations of the plaintiffs in
England. Russia cannot therefore realistically be treated as an
appropriate forum where the ends of justice can be achieved. In
the alternative counsel for Forbes argued that the United States
is a more appropriate jurisdiction for the trial of the action.
There was a large distribution of the magazine in the United States.
It is a jurisdiction where libel actions can be effectively and
justly tried. On the other hand, the connections of both plaintiffs
with the United States are minimal. They cannot realistically
claim to have reputations which need protection in the United
States. It is therefore not an appropriate forum."
186. The then Master of the Rolls, Sir Anthony Clarke,
explained to us in his evidence how the rules surrounding jurisdiction
were meant to work:
"I think the approach [...] is that, if
there has been a significant publication within the jurisdiction,
then, in the first class of case anyway, the courts have ordinarily
taken the view that, if the claimant has found the defendant here,
he ought to be entitled to claim about an unlawful publication
here, but, if it is a very insignificant part of a worldwide publication,
then the courts will say, 'No, this case ought to be tried elsewhere.'"
187. Despite this, we have received repeated submissions
suggesting that, because of the combined effects of the rules
on jurisdiction and of global publication on the internet, what
are said to be blatantly inappropriate cases, involving foreigners
suing foreigners, are reaching UK courts. Witnesses have told
us, further, that defendants in such cases, who find themselves
obliged to fight actions in a foreign country under foreign law,
are often placed at a disadvantage, to the detriment of free expression.
188. A number of cases have been brought to our attention
where concerns have been expressed over the appropriateness of
the High Court as a forum. They include a Ukrainian businessman,
Rinat Akhmetov, who sued a Ukrainian language website, Obozrevatel,
which is based in the Ukraine for £50,000, on the basis that
he had a business reputation in the UK and the offending article
had been viewed in Britain,
and the action brought by Iceland's Kaupthing Bank, which won
an apology and damages from Ekstra Bladet, a Danish newspaper.
Kaupthing had argued that a number of the paper's articles in
both Danish and English were downloaded and read in England and
189. Some of the most trenchant criticism has come
from media organisations in the United States.
In a joint submission to the inquiry, a number of international
newspapers, internet services and publishing organisations, including
the New York Times and Bloomberg, expressed the following
criticism of the English court in Lewis v King:
"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." 
190. The submission went on to note:
"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."
191. Lawyers who usually act for media organisations
in this country also expressed concern. Mr Mathieson told us:
"I [...] think the existing case law has
become too restrictive. There are cases in which [cases can be
struck out]; for example, if there is no evidence that a website
received any significant number of hits from this jurisdiction,
then the courts in such cases have said that the action should
not be allowed to proceed: but there have been many other cases
in which only 30 or 40 instances of publication have taken place
within this jurisdiction which have been considered to be sufficient
to allow the case to proceed."
192. Mr Partington summed up the changes to the jurisdictional
rules he thought necessary to protect media organisations and
authors from inappropriate claims:
"I think there needs to be much greater
scrutiny about whether the person is connected to this country,
properly connected to this country; secondly, I think there needs
to be a much greater scrutiny of the extent of publication in
this country; and, thirdly, I think there needs to be a greater
scrutiny of whether there is a more appropriate forum for the
issue to be dealt in."
193. However, we heard from Loreena McKennitt, a
Canadian musician and singer, of her frustration at being branded
a libel tourist by the press. In 2005, Ms McKennitt sued for invasion
of her privacy over a book written by a Canadian friend, but published
"It is ironic to note that it is the media
which has coined the term 'libel tourism' in order to frame with
ridicule all matters of libel as nothing more than recreational
activities by the 'rich and famous' from abroad. Although so called
'libel and privacy tourism' has been decried as a threat to democracy
and media freedom, they are false decoys thrown up by the media
to distract from the true effects of international internet access.
Shopping for a favourable jurisdiction is far more likely to originate
from members of the media seeking to avoid any limitation on their
activity (such as a publication order or a judgment), regardless
of how lawful and justified the restriction may be or how damaging
the false or intrusive revelation is to justice, security or innocent
194. Equally, though, we also heard evidence that
some law firms such as Carter-Ruck and Schilling have been promoting
their expertise in 'reputation management',
encouraging law suits in London.
THE INTERNATIONAL CONTEXT
195. The UK's reputation as a country which protects
free speech and freedom of expression is being damaged by concern
over libel tourism. In the United States, there has been much
debate about the alleged chilling effect of UK libel laws on American
writers and journalists. During our visit to Washington DC, Albany
and New York we met writers and journalists as well as lawyers
and legislators who were concerned about this. Much of this concern
can be traced to the case of Rachel Ehrenfeld.
196. In 2003, Dr Ehrenfeld, an author based in New
York, published in the US a book entitled Funding Evil: How
Terrorism is Financed and How to Stop It. A deal to publish
in Britain was cancelled following a threat to sue for libel by
Khalid Bin Mahfouz, a banker of Saudi origin but now with Irish
citizenship. Even though no British edition appeared, Mr Bin Mahfouz
brought a libel claim in the UK. Publication in England and Wales
consisted of 23 copies of the book ordered over the internet and
some passages on a website that had been accessed. Dr Ehrenfeld
refused to travel to England to defend herself in the High Court
and in 2005 a default judgment was entered against her and she
was ordered to pay £30,000 damages together with £100,000
197. Dr Ehrenfeld unsuccessfully sought an order
from the American federal courts preventing Mr Bin Mahfouz from
enforcing the judgment in the United States. Instead the court
invited him to undertake not to pursue execution of the judgment,
but he refused.
198. In April 2008, however, the New York State legislature,
responding to the Ehrenfeld case, passed the Libel Terrorism Protection
Act. The Act prevents the enforcement in America of libel judgments
obtained in other jurisdictions against New York-based writers,
unless a New York court holds that the judgment satisfies the
free speech and free press provisions under federal law of the
New York State Constitution.
199. Dr Ehrenfeld told us she believed that if she
had to be sued over the book, then as an American citizen publishing
a book in America, she should have been sued in America, where
she would have been happy to defend her work. She said she had
been deterred from defending herself in the High Court in London
by several factors, including the cost and the difference in the
disclosure rules and burden of proof.
200. Other US states have followed the lead given
by New York State. Laws similar to the Libel Terrorism Protection
Act have been passed in Illinois, Florida and California and a
bill has been introduced in the Hawaiian legislature.
Nor has legislative action been limited to individual states.
A Bill mirroring the provisions in the New York State Act was
passed by the House of Representatives, and may be taken up in
the Senate. A Bill which set out to deter claimants from suing
American authors in foreign courts by permitting American defendants
to counter-sue in the United States courts under certain circumstances
and, in addition, allowing the jury to award treble damages, has
been abandoned, however.
201. That the United States feels it must take action
to protect its citizens from UK judgments in this way has caused
dismay in the British legal world. Tony Jaffa told us: "I
find it really very distressing that they should think of our
laws as terrorism. Just think what that implies. If I were a Parliamentarian
I would be absolutely shocked to think that the United States
regards our law in that light."
202. It is not only in the United States that concern
is felt about the libel tourism in the UK courts. The United Nations
Human Rights Committee (UNHRC), in its sixth periodic report into
human rights in the UK, strongly criticised the working of the
"The Committee is concerned that the State
party's practical application of the law of libel has served to
discourage critical media reporting on matters of serious public
interest, adversely affecting the ability of scholars and journalists
to publish their work, including through the phenomenon known
as "libel tourism." The advent of the internet and the
international distribution of foreign media also create the danger
that a State party's unduly restrictive libel law will affect
freedom of expression worldwide on matters of valid public interest.
203. The international media have also expressed
wider concerns about the alleged intimacy between the UK's specialist
libel judges and lawyers practising in the field. The memorandum
to our inquiry submitted by media organisations including the
Association of American Publishers noted the following:
"To foreign observers the English libel
industry is most unusual. Its legal costs are by far the highest
in Europe. 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."
204. However, when pressed by us on such matters
and in particular on developments in the US, the Lord Chancellor
said he was not aware that the Government had made any representations
on either the pending or the passed legislation in the United
States. He argued
that it would not be appropriate to do so:
"The American Congress, subject to the other
states of that realm, is sovereign in these areas. We could do
the same here, if we wished, to make [foreign] judgments unenforceable
] in this country. I do not have any particular comment
205. Whatever the constitutional situation, or
diplomatic niceties, we believe that it is more than an embarrassment
to our system that legislators in the US should feel the need
to take retaliatory steps to protect freedom of speech from what
they view as unreasonable attack by judgments in UK courts. The
Bills presented in Congress, allowing for triple damages, were
reminiscent of the 1970 Racketeer Influenced and Corrupt Organisations
Act, which was originally aimed at tackling organised crime. As
such, they clearly demonstrated the depth of hostility to how
UK courts are treating 'libel tourism'. It is very regrettable,
therefore, that the Government has not sought to discuss the situation
with their US counterparts in Washington, or influential states
such as New York and California. We urge it to do so as soon as
206. When we put the media's concerns about libel
tourism to the Lord Chancellor, he told us that he did not believe
that libel tourism was a real issue in the UK, saying: "I
have yet to be convinced that there is a significant problem.
I am not ruling it out; I just want to see what the evidence is."
Since then, however, he has set up a 'Working Group on Libel'
with the media, lawyers and academics, with the remit 'to consider
whether the law of libel, including the law relating to libel
tourism, in England and Wales needs reform'".
207. We welcome the Lord Chancellor's establishment
of the Working Group on Libel and the inclusion of 'libel tourism'
in its remit. We also agree with him that it is important to have
an evidence base for decision-making. During the course of our
inquiry we asked for information on the number of cases challenged
on the grounds of jurisdiction and the success rate of such challenges.
We have been provided with no such information and it was not
clear who would be responsible for collecting it. Without reliable
data it is difficult to see how the Government can monitor the
implementation of Rule 6.36 of the Civil Procedure Rules.
208. We recommend that the Ministry of Justice
and the Courts Service should as a priority agree a basis for
the collection of statistics relating to jurisdictional matters,
including claims admitted and denied, successful and unsuccessful
appeals made to High Court judges and cases handled by an individual
judge. We further recommend that such information be collated
for the period since the House of Lords judgment in the Berezovsky
case in May 2000 and is published to inform debate and policy
options in this area of growing concern.
209. Of the cases identified to us as causing concern,
a striking aspect is the low levels of distribution in this country
that can be involved. In Berezovsky it was 2,000 copies, against
800,000 in North America. In the Ehrenfeld case, it was 23 copies
of the book and some internet 'hits'. In another case, decided
in 2008, Alexis Mardas, an associate of the Beatles, was held
to be entitled to sue the New York Times in England over
allegations in a story contained in a newspaper of which 177 copies
had been sold in England and Wales.
A notable feature here was that the High Court Master refused
to admit the action as an abuse of process, but Mr Justice Eady
overruled him on appeal, ordering the New York Times to
pay the £65,000 costs of both hearings.
210. The growth of the internet seems likely to augment
this trend. News International Limited stated in evidence to us:
"With electronic internet publication across borders [
actions are brought in the UK at considerable expense to taxpayers
even though there has been minimal publication in this jurisdiction."
211. It has been suggested to us that a simple mechanism
to limit libel tourism would be to create a threshold of the number
of publications needed for a case to be heard in the UK. Mark
Stephens suggested to us that fewer than 1,000 copies should be
treated as de minimis by the courts and that in such cases
jurisdiction should be declined:
"That has two effects: one is that a thousand
is a fairly minimal number in terms of dealing with somebody's
reputation; it is likely to have had a much more significant circulation
in another jurisdiction, which would be perhaps more appropriate
to sue in; and as a consequence of that we are not cluttering
our courts up with small pettifogging claims, rather than the
bigger claims which are more appropriately dealt with within the
jurisdiction of this court."
212. A test of at least 750 print copies in England
and Wales and more than two per cent of worldwide circulation
was also proposed by a collective submission on behalf of, inter
alia, the Association of American Publishers, US news agencies,
NGOs, the Los Angeles Times and New York Times.
They also proposed that an article posted on a foreign internet
site would have to have been actively promoted here.
213. Although such limits are attractive in their
simplicity, any figure would necessarily be an arbitrary one.
A de minimis rule of 1,000 copies would ignore the fact
that publication to only one person can destroy a claimant's reputation.
Equally, there could be relatively wide publication, of over 1,000
copies, and there could still be a more appropriate forum for
the case to be heard than the courts in the UK.
214. In cases where neither party is domiciled
nor has a place of business is the UK, we believe the claimant
should face additional hurdles before jurisdiction is accepted
by our courts. On balance, we believe there is sufficient evidence
to show that the reputation of the UK is being damaged by overly
flexible jurisdictional rules and their application by individual
High Court judges, as exemplified by Mr Justice Eady in the Mardas
and New York Times case.
215. We recommend that the Ministry of Justice
and the Civil Justice Council consider how the Civil Procedure
Rules could be amended to introduce additional hurdles for claimants
in cases where the UK is not the primary domicile or place of
business of the claimant or defendant. We believe that the courts
should be directed to rule that claimants should take their case
to the most appropriate jurisdiction (ie the primary domicile
or place of business of the claimant or defendant or where the
most cases of libel are alleged to have been carried out).
The internet and the 'repeat
216. Under English and Welsh law each sale of a newspaper,
book or other print medium constitutes a separate publication.
If a newspaper contains a libel, then each individual publication
or sale of that paper is a potential cause for legal action. This
is the so-called 'repeat publication rule', which stems from a
court decision in 1849. The Duke of Brunswick sent his manservant
to purchase a back issue of the Weekly Dispatch, which
he believed had libelled him some 17 years previously. The court
ruled that this sale constituted a fresh publication so that the
Duke was able to successfully sue for libel.
While the Duke would no longer be able to rely on a purchase he
had engineered as a 'publication', as this would constitute consent
to dissemination of the information and an abuse of the process
of the court,
it remains the position that each time a newspaper, book or article
is accessed a fresh publication, and a potential cause of action,
217. In contrast, most American states apply the
'single publication rule' in defamation cases, meaning that there
can only be one cause of action emanating from a publication,
no matter how many copies were produced or downloaded, or where
and when they were distributed.
218. Until recent times, publishers and authors here
enjoyed a measure of protection from the effects of the repeat
publication rule thanks to the statute of limitations, which requires
claimants to sue within a year of publication. Thus, for example,
a year after the publication date of an article in a newspaper,
the paper could not normally be sued. The development of the internet,
where articles can remain accessible for many years, has changed
this. Each time an article is accessed, even if it is more than
a year since it was first posted online, that is a new publication
and so is potentially capable of attracting a libel action.
219. In 2002, the UK courts confirmed that the multiple
publication rule applies to internet archives.
Times Newspapers challenged the decision in the European Court
of Human Rights but lost.
It is noteworthy that The Times lost because of its failure
to 'tag' the offending article with a qualifying statement which,
in the view of the court, would have removed the 'sting' from
220. The difficulties caused by the expansion of
the internet were acknowledged by the Law Commission in 2002,
in the following terms:
"We recommend a review of the way in which
each download from an online archive gives rise to a fresh cause
of action, and causes the limitation period to begin anew. We
have argued previously that the present limitation period of one
year may cause hardship to claimants, who have little time to
prepare a case. However, it is potentially unfair to defendants
to allow actions to be brought against archive-holders many years
after the original publication. After a lapse of time, it may
be difficult to mount an effective defence because records and
witnesses are no longer available. Online archives have a social
utility, and it would not be desirable to hinder their development."
221. But the internet can also have a chilling effect
on organisations worried about being sued in foreign jurisdictions.
Article 19, a non-governmental organisation which campaigns for
freedom of speech, warned us of the danger of creating "a
risk of a "lowest common denominator" approach to the
freedom of expression of those who publish on the internet".
Of particular concern is the possibility of being sued in relation
to material contained in internet archives. Material that is often
many years old can be contained in an online archive, leading
to the possibility of a publication being sued many years after
an article was first published.
222. The Court of Appeal has previously considered
and rejected an application that it should introduce a single
publication rule into domestic law, a decision which was not appealed
to the House of Lords.
223. We heard from Mr Partington of the Media Lawyers
Association of the practical difficulties faced by newspapers
in defending libel actions based on stories from some time ago:
"What actually happens in truth is that
people will complain about something that is published on-line,
and because of the difficulty of defending it, because of years
later, the natural instinct is to just remove it whether it is
true or not; which I think we all lose out on in that sense because
the public loses information, and accessed information, which
could well be true; but it is safer and easier for media organisations
to just say, 'Okay, I'll take that down', because they might not
be in a position to defend it, so we all lose out, I think."
224. A further problem is the limited ability of
the originators of articles to control them once they have been
placed on the internet. Even if the originator has agreed to remove
an article, it can still have a life on the internet with third
party sites and bloggers carrying references to it.
225. Mark Thomson, then of Carter-Ruck, explained
that this causes problems both for the publisher of the original
article, who will be worried about ongoing liability, and for
] even though a newspaper might
have apologised and said someone is not a car thief, the allegation
is repeated, Google keeps putting it on their search engines and
it is still out there, whereas the person who has won his action
and has been vindicated is then faced with effectively the same
226. The Media Lawyers Association suggested to us
that there should be consideration of the introduction of a single
publication rule for articles on the internet, removing the ability
to sue some years after the event.
Mr Mathieson of Reynolds, Porter, Chamberlain solicitors suggested
to us that the simplest change would be to introduce a statute
of limitations in line with that for printed articles, meaning
that a complainant would need to sue to within one year of the
article first appearing on the internet.
227. However, Mr Thomson suggested that such changes
would be unfair to those whose reputations can be harmed by material
on the internet many years after its first appearance:
] in my view the internet changes
the game a lot because once it is online it gets repeated. Google
makes all articles and everyone's previous articles available
]. I think the law as it is should stay because of the
power of the internet, otherwise archive defamatory allegations
will remain available."
228. Since we took evidence on the issues raised
by the multiple publication rule and the internet, the Ministry
of Justice has published a consultation paper on the issue, Defamation
and the internet: the multiple publication rule.
The consultation, which ended on 16 December 2009, sought views
on the retention of the multiple publication rule, raised the
possibility of its replacement by a single publication rule and
asks what the consequences would be. The consultation also asked
what limitation period for defamation actions would be most appropriate;
whether the test should be 'date of publication' or 'date of knowledge';
and whether qualified privilege should be being extended to electronic
229. It is clear that a balance must be struck
between allowing individuals to protect their reputations and
ensuring that newspapers and other organisations are not forced
to remove from the internet legitimate articles merely because
the passage of time means that it would be difficult and costly
to defend them. We welcome the Lord Chancellor's consultation
and look forward to his conclusions. As a general consideration,
we believe it would be perverse if any recommendations increased
the uncertainty faced by publishers under the UK's already restrictive
230. In order to balance these competing concerns,
we recommend that the Government should introduce a one year limitation
period on actions brought in respect of publications on the internet.
The limitation period should be capable of being extended if the
claimant can satisfy the courts that he or she could not reasonably
have been aware of the existence of the publication. After the
expiry of the one year limitation period, and subject to any extension,
the claimant could be debarred from recovering damages in respect
of the publication. The claimant would, however, be entitled to
obtain a court order to correct a defamatory statement. Correction
of false statements is the primary reason for bringing a defamation
claim. Our proposal would enable newspapers to be financially
protected in some degree from claims against which the passage
of time may make establishing a defence difficult.
231. We have also received evidence that electronic
archives should be protected by 'qualified privilege'. This issue
is explored by the consultation, with a one year limitation period
suggested, unless the publisher has not amended or flagged the
online version in response to a complaint. We agree. This would
take into account views expressed by the ECtHR in Times Newspapers
v UK, regarding the increasing importance of online archives
for education and research in modern times.
232. Criminal libel stemmed from a time when Government
was anxious to defend both itself and the rich and powerful from
criticism by the media and the public. If those prosecuted under
criminal libel sought to use the defence of justification they
had to prove not only that a statement was true, but also that
its publication was for the public benefit. Defendants could thus
be convicted even when they could prove they had told the truth.
The maximum sentence available was two years in prison. Criminal
libel was removed from the statute books of England and Wales
in November 2009 by the Coroners and Justice Act, though it remains
an offence in Scotland.
233. Before the passage of the Act, we received eloquent
evidence on this matter. In a written submission to this inquiry
Article 19 stated that criminal libel was simply not required
to protect reputations where civil defamation laws existed, and
that imprisonment and a criminal record were disproportionate
as punishment for defamation. The submission concluded:
] criminal defamation laws inherently
fail to strike an appropriate balance between reputations and
freedom of expression. Criminal defamation laws are a major obstacle
to freedom of expression in many parts of the world. The key problem
with criminal defamation is that a breach may lead to a custodial
sentence or another form of severe criminal sanction, such as
a suspension of the right to practise journalism. The stigma of
a criminal conviction can harm a journalist's career long after
the penalty has formally been discharged. The threat of such sanctions
casts a wide shadow as journalists and others steer well clear
of the prohibited zone to avoid any risk of conviction. This can
lead to serious problems of self-censorship, stifling legitimate
criticism of Government and public officials."
234. Mark Stephens, of Finer Stephens Innocent solicitors,
told us that, while the criminal libel laws were effectively moribund
in the UK, the legitimacy they gave to similar laws in other countries
"I am very often asked to be a trial observer
or, indeed, to go and monitor the human rights standards of other
countries, and invariably, particularly in the Commonwealth, it
is said back to me, 'Yes, but you've got criminal libel - why
shouldn't we?' This is a particular problem in Southeast Asia.
I think the quicker we do away with these laws - which we all
know have fallen into desuetude and are not likely to be resurrected
- we are able then to stand up and encourage others to make reforms."
235. The offence of criminal libel is untenable
in a modern, democratic society. We therefore welcome the Government's
decision, 27 years after it was advocated by the Law Commission,
to repeal the law of criminal libel. We hope this will encourage
other legislatures, including the Scottish Parliament, to demonstrate
their own commitment to freedom of expression by doing the same.
114 Sim v Stretch  2 All ER 1237, 1240,
per Lord Atkin Back
Defamation Act 1952, section 4 Back
HC Deb 22 Feb 1996 c564 Back
Defamation Act 1996, section 8(2) Back
Ibid., section 1 Back
Q 869 Back
John v Mirror Group Newspapers  EWCA Civ 23 Back
Lillie v Newcastle City Council Back
"Court 'vindicates' McCann suspect", BBC News Online,
Q 865 Back
Q 945 Back
Ev 482 Back
British Chiropractors Association v Singh  EWCA
Civ 1154 Back
[Tom Bowyer], PS 141 - Ordered by the Committee to be published,
available on the Culture, Media and Sport Committee website, www.parliament.uk/cmscom,
and in the Parliamentary Archives. Back
Desmond v Bower  EWCA Civ 667 and  EWCA Civ
Q 816 Back
Q 865 Back
Ev 483 Back
Q 332 Back
Toogood v Spyring (1834) 1 Cr. M. & R. 181 Back
Reynolds v Times Newspapers  3 All ER 961 Back
Reynolds v Times Newspapers  3 All ER 961 Back
Jameel and others v. Wall Street Journal Europe Sprl 
UKHL 44 Back
Charman v Orion Publishing Group Ltd.  EWCA Civ 972 Back
Q 44 Back
Q 1041 Back
Q 1040 Back
Q 897 Back
Q 44 Back
Q 94 Back
Ev 408 Back
Q 416 Back
Qq 593, 897 Back
Derbyshire County Council v Times Newspapers Ltd. 
2 W.L.R. 449 Back
Steel & Anor v McDonald's Corporation & Anor 
EWCA Civ 1144 Back
Defamation Act 2005 Back
"Corrections and clarifications", The Guardian,
3 May 2008 Back
Tesco Stores Ltd. v Guardian News and Media Ltd. 
EWHC 14 (QB) Back
Q 860 Back
Q 868 Back
Q 95 Back
Q 96 Back
Q 1011 Back
Ev 239 Back
Rule 6.36, Civil Procedure Rules Back
Practice direction 3B, para 3.1 Back
Kroch v. Rossell (1937) 1 All E.R. 725. Back
Q 1032 Back
Spiliada Maritime Corporation v Cansulex Ltd.  A.C.
 2 All E.R. 986 Back
Ev 421 Back
Berezovsky v. Michaels and Others; Glouchkov v. Michaels and
Others (Consolidated Appeals) Back
Q 955 Back
Such as Ev 2, Ev 8, Q 498 Back
English Pen and Index on Censorship, Free Speech is not for
sale: the impact of English libel law on freedom of expression,
Case Studies, November 2009 Back
Section 11 of the Irish Defamation Act 2009 introduces a single
publication rule, subject to the court's discretion Back
Lewis & Oths v King  EWCA Civ1329; Ev 240 Back
Ev 237 Back
Q 52 Back
Q 56 Back
Ev 438 Back
Ev 291 Back
Hawaii State Legislature, A Bill for an Act relating to judgments,
HB 130 HD 1 Back
Q 60 Back
United Nations Human Rights Committee, Sixth Periodic Report
of the United Kingdom on the implementation of the International
Covenant on Civil and Political Rights (ICCPR), July 2008 Back
Article 19 of the Universal Declaration of Human Rights Back
Ev 236 Back
Q 995 Back
Q 991 Back
Q 988 Back
HC Deb, 27 January 2010, col 58WS Back
Mardas v The News York Times  EWHC 3135 (QB) Back
Ibid.; Ev 236 Back
Ev 411 Back
Q 1030 Back
Ev 237 Back
Duke of Brunswick v Harmer  14 QB 154 Back
See, for example, Carrie v Tolkein  EWHC 29 (QB) Back
Uniform Single Publications Act in 1952: held to apply to internet
archives in Firth v State of New York (2002) NY int 88 Back
Loutchansky v The Times Newspaper  1 All ER 652 Back
Times Newspapers (No. 1 & 2) v United Kingdom (2009)
(Apps 3002/03 and 23676/03) Back
Law Commission, Defamation and the internet, Scoping Study,
2002, para. 1.14 Back
Ev 288 Back
Lord Steyn Berezovsky & Glouchkov v Michaels & Oths. Back
Q 21 Back
Q 97 Back
Q 19, Ev 7-8 Back
Qq 25-6 Back
Ministry of Justice, Defamation and the internet: the multiple
publication rule, Consultation paper CP20/09, 16 September
Ev 422-423 Back
Q 1037 Back