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England's mediaevel libel laws are becoming a global menace to free speech

by George Monbiot

Published in the Guardian (July 15 2008)


After every test case, the media assume the worst is over: that
Britain's libel laws, designed to protect the powerful from public
scrutiny, have been fanged, and freedom of speech will no longer be
treated like a crime. And then it gets worse.

On the website of Craig Murray, the former British ambassador to
Uzbekistan, you can read a letter his publishers have received from the
law firm Schillings {1}. It contains something I have never seen before:
a threatened injunction against a book they haven't read and that won't
be published until September. Acting on behalf of the "private security
contractor" Tim Spicer, Schillings gave the publishers three days (the
deadline was last Friday) to guarantee that the book does not defame its
client, or face "an injunction to restrain publication".

No publisher can afford to ignore a letter like this. Though libel is a
civil rather than a criminal matter in this country, the consequences
can be much graver than most criminal convictions. I would rather go to
prison for a few weeks for committing a crime than spend five years
fighting a libel case, then lose my house and my savings. It is better
to be caught mugging than to be caught speaking freely.

If someone launches a sustained and malicious campaign of false charges
against another person, and that person is given no opportunity to
demonstrate that he is being wronged, he should be allowed to seek
redress. But the libel laws of England and Wales are tilted so heavily
against the defendant and involve such monumental costs that they
amount, in effect, to censorship by private interests: a sedition law
for the exclusive use of millionaires. While in the United States the
plaintiff must prove that the claims against him are false, in English
law the defendants' claims are presumed false until proven otherwise: he
has to demonstrate his innocence. If his defence fails, he must pay both
costs and damages. The plaintiff's lawyers make little attempt to limit
their costs: the partners at one well-known firm charge GBP 750 an hour
{2}. The bill can rise to millions.

Perhaps you don't live in England or Wales, so you think this has
nothing to do with you. You're wrong. English libel law now applies to
everyone on earth. Make any accusation, anywhere in the world, and if
the subject can demonstrate that a single person in England or Wales has
read it, you could be sued here for every penny, cent, rouble, rupee or
renmimbi you possess. The internet and the global nature of publishing
ensure that these mediaevel laws have become the most powerful
extra-territorial legislation ever drafted.

Yesterday two men with whom I seldom agree, the US senators Arlen
Specter and Joe Lieberman, launched a new bill, called the Free Speech
Protection Act, to defend US citizens against English libel law. Our
laws, they argue, threaten the "free-flowing marketplace of ideas" which
"enables the ideals of democracy to defeat the totalitarian vision of al
Qaeda and other terrorist organizations" {3}. English libel law is an
international menace, a national disgrace, a pre-democratic anachronism.
It defends crooks, terrorists and tyrants from investigation. It
threatens the free speech of people all over the world and causes untold
damage to the reputation of this country. And neither the British
government nor the British parliament gives a damn.

Every few years the newspapers fill with optimistic headlines about the
death of these repressive laws. In 1999, they were deemed to have been
neutralised by the case of Reynolds v Times Newspapers, when the law
lords established that a journalist could use the defence of public
interest if he had acted responsibly, even if he could not prove his
allegations. But the criteria for responsible journalism were so
narrowly defined that this defence has seldom succeeded. In 2006 the
laws were deemed to have died again when the Wall Street Journal
successfully used the Reynolds defence in the House of Lords,
overturning a case brought by the Saudi businessman Mohammed Jameel {4}.
Last year they died once more when the court of appeal found that the
investigative journalist Graeme McLagan had acted responsibly when he
claimed that a former police officer had taken a bribe from a
criminal{5, 6}. But today Britain's libel lawyers are more active than
ever before.

They have developed a lucrative new line in shutting down websites. This
is the second time, for example, that Craig Murray has come to the
attention of Schillings. Last year it closed his site and several others
by threatening the companies which host them - internet service
providers (ISPs) - with libel suits on behalf of Alisher Usmanov, the
Uzbek-Russian billionaire with a major share in Arsenal football club
{7, 8, 9}. ISPs are especially vulnerable to the libel laws. Most of
them have no stake in the contents of the sites they host and have no
means of deciding whether the material they contain or the complaints it
generates are true, but they carry as much liability as the people who
write defamatory blogs. They can be sued even over the throw-away
remarks of anonymous posters on comment threads - this is one of the
reasons why the Comment is Free threads have to be edited by the
Guardian. Some lawyers don't bother to write to the authors of
contentious web pages, but deal only with the ISPs, knowing that they
are likely to surrender at the first whiff of gunpowder {10}.

Some of the successful cases appear to me to be remarkably petty. Last
year the directors of the Sheffield Wednesday football club sued the fan
site Owlstalk to force it to reveal the identity of eleven anonymous
contributers to its forums, who had made derogatory comments about them
{11}. The controversial childcare guru Gina Ford obliged the site
Mumsnet to apologise and pay her legal costs, after bloggers had
alleged, among other accusations, that she had been "strapping babies to
rockets and firing them into South Lebanon" {12}. Who but Ms Ford could
have taken this seriously? The blogger Richard Brunton tells a shocking
story of the threats he received from a leisure company (which he is now
too frightened even to name) after contributors to his site had made
adverse comments about some of its products {13}. Such threats could
bring an end to critical online reviews. The internet butterfly is
repeatedly broken upon the wheel of England's mediaevel laws.

In 2002, the Law Commission, a statutory body, recommended that the
libel laws be reformed to protect ISPs {14}. Since then the government
has done nothing. British ministers love these censors' laws. Even the
newspapers scarcely seem prepared to fight. Rather than campaign for new
legislation, they simply wait for the higher courts to act, then claim
victory when no such thing has been achieved. It is not as if most of
the media is falling over itself to expose the misdeeds of the rich and
powerful anyway: the law gives editors the excuse they need to leave
billionaires alone.

As for our parliamentarians, I would like to have ended this column by
naming some of these self-interested chickens, who thunder about free
speech while allowing the rich to stamp on their critics. But I wouldn't
dare: they might sue me.

www.monbiot.com

References:

1. http://www.craigmurray.org.uk/Schillings.pdf

2. Robert Verkaik, 7th July 2008. Defame academy: the libel specialists.
The Independent.

3. Arlen Specter and Joe Lieberman, 14th July 2008. Foreign Courts Take
Aim at Our Free Speech. Wall Street Journal.

4. eg James M Dorsey, 16th October 2006. 'Victory is sweet'. The Guardian.

5. Clare Dyer, 12th October 2007. Landmark libel ruling grants more
freedom to journalists. The Guardian.

6. Graeme McLagan, 15th October 2007. Brought to book. The Guardian.

7. Michael Weiss, 10th October 2007. Civil Disobedience on the Web.
http://www.slate.com/id/2175579/

8. Doreen Carvajal, 7th October 2007. Bloggers beware when you criticize
the rich and powerful.
http://www.iht.com/articles/2007/10/07/business/net08.php

9. http://b-heads.blogspot.com/

10. There is an interesting discussion of the problem and possible
solutions at http://www.ministryoftruth.me.uk/2007/09/

11. Bobbie Johnson, 29th October 2007. Red card for commenters. The
Guardian.

12. Lucy Ward, 10th May 2007. Gina Ford wins apology over web postings.
The Guardian.

13. http://weblog.brunton.org.uk/archives/2007/09/solicitors_atta.html#more

14. Clare Dyer, 18th December 2002. Internet libel laws 'stifling
freedom of expression'. The Guardian.

Copyright (c) 2006 Monbiot.com

http://www.monbiot.com/archives/2008/07/15/censored-by-money/


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