Friday, February 26, 2010
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BROOKE GLADSTONE: England offers tourists all kinds of attractions. There’s Hyde Park, Big Ben and, of course, its unique libel laws. Libel laws the world over are intended to prevent people from publishing untrue damaging claims about each other, but Britain’s law is uniquely plaintiff-friendly. Unlike American law, it places the burden of proof on alleged libelers to defend their work. He or she is guilty until proven innocent. That’s bad not just for British journalists but for journalists worldwide who publish anything that can be accessed on the Internet. One American author was sued by a Saudi sheik for a book she wrote - not published in the U.K. - because the sheik’s lawyers claimed that 26 people in England had read it. But all this may be about to change. On Wednesday, the chairman of Britain’s House of Commons Committee on Culture, Media and Sport said it was, quote, “a humiliation that American states were writing laws explicitly to protect U.S. citizens from British libel suits.” The committee issued a set of recommendations that could mark the beginning of reform. John Kampfner is head of Index on Censorship, a U.K.-based NGO that advocates for free speech. He describes how British libel laws have created a cottage industry of lawyers making their living off of frivolous lawsuits.
JOHN KAMPFNER: Legal companies are encouraging the rich and the powerful to claim damage to their British reputation, and all you need is a small office or a second home in the U.K. and you can sue. And there’s a whole series of procedures that have weighted the balance entirely towards the litigants and away from the defendant.
BROOKE GLADSTONE: Can you summarize what those provisions are?
JOHN KAMPFNER: One of them is the cost mechanism, which is very easy for people to string out cases, effectively threatening people. The costs are so great that people’s cash flow is irrevocably damaged.
BROOKE GLADSTONE: These are what are called ‘SLAPP suits’ in the United States.
JOHN KAMPFNER: Yeah.
BROOKE GLADSTONE: Suits that a large company knows it will probably lose, but just the threat of costly litigation will cause the righteous party to yield.
JOHN KAMPFNER: This is the chilling effect. What is happening is that people are self-censoring; they're not publishing. I hear this from publishing companies not just in the U.K. but in the U.S. and elsewhere who are simply taking out points, even in fiction – we're not even talking about nonfiction or political books – in case they get sued by a British court.
BROOKE GLADSTONE: What do you mean by taking out points?
JOHN KAMPFNER: For example, NGOs, charities or agencies that try to shine a light on corruption are very scared now of writing things in their reports in case that particular dictatorship uses a British court to sue them. So you could have, for example, a Russian NGO saying something critical about a Ukrainian oligarch, and that Ukrainian oligarch uses the courts in London to seek redress. We have become, as the saying goes, a town called Sue.
[BROOKE LAUGHS] The Select Committee, they're looking to change this whole question of jurisdiction. In other words, if you are a foreigner you can use British courts but you have to satisfy the judges that Britain is a very serious part of your corporate or personal life; it’s not just somewhere you might visit for two or three days a year. So it’s going to, in one fell swoop, remove some of this more ridiculous form of libel tourism.
BROOKE GLADSTONE: The Guardian’s Paul Farrelly wrote this week that he had asked the committee to reconsider the libel laws after attempts were made to prevent his newspaper, The Guardian, and the rest of the U.K. press from reporting last October on a toxic waste-dumping scandal in Africa. Are you familiar with that?
JOHN KAMPFNER: Oh, we were very familiar with it. Paul Farrelly, in actual fact, became, several years ago, a Labor member of Parliament. He introduced a question concerning an oil trading company called Trafigura and allegations that it had dumped toxic waste in the African country of Ivory Coast. Now, under Britain’s long-established constitutional provisions, parliamentarians can say whatever they wish, either in questions to government ministers or in the chamber of Parliament and that no libel or other laws can intervene. That has been regarded as sacrosanct. On this occasion, however, the law firm representing this company threatened The Guardian newspaper that the fact of reporting this Parliamentary question would render it subject to libel, which was an astonishing overreaching and led to quite a major constitutional fracas. The Ministry of Justice is now going to say that no law firm has any right to threaten Parliament. But it really did show the hubris of litigant companies. And, as we've just seen with this Select Committee Report, things are beginning to change.
BROOKE GLADSTONE: So do you think then that there is momentum for substantive change in British libel laws now? I mean, what do you think will really come of all of this?
JOHN KAMPFNER: There is most definitely momentum for libel reform. You have to, however, see this in the perspective also of quite a great deal of public skepticism about the role of the press in the U.K. The reason this Parliamentary report, in my opinion, was so strong was that it sought to differentiate between good, robust, well-researched investigative journalism with the more prurient, invasive tabloid journalism.
BROOKE GLADSTONE: So can you tell me how these proposals distinguish between good investigative reporting and prurient tabloid reporting? It seems to be a sticky wicket.
JOHN KAMPFNER: [LAUGHS] To use a British cricketing phrase. But on these issues of privacy, whether you’re talking about Tiger Woods on your side of the Atlantic or a famous soccer player called John Terry, who until recently was the England football captain and who has had the captaincy taken away from him, also for various extramarital affairs. It is hard to
determine what is in the public’s interest and what is not.
BROOKE GLADSTONE: Mm-hmm. [AFFIRMATIVE]
JOHN KAMPFNER And, you know, a supercilious way of saying public interest is anything that the public is interested in. But there are legitimate areas. If there’s illegality, if there is hypocrisy, so if it’s a politician who talks about family values and then acts contrary to that - there are fewer and fewer journalists out there researching important stories. And if the media is drawing itself down to the lowest common denominator, then we will all be ill served.
BROOKE GLADSTONE: Well, John, keep us posted. You think we'll know anything in a year?
JOHN KAMPFNER: Put it this way: I'll be very disappointed if we haven't over here had substantial change for the better within six months.
BROOKE GLADSTONE: All right, thanks very much.
JOHN KAMPFNER: It’s been a pleasure.
BROOKE GLADSTONE: John Kampfner is chief executive of Index on Censorship.
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