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article imageOp-Ed: The libel laws are no picnic in spite of attempts at 'reform'

By Alexander Baron     May 7, 2011 in Politics
An in-depth analysis of the state of the law of defamation in Britain and the ongoing attempts ostensibly to reform it with some insight into the motives of those who seek to do so.
Earlier this year, Deputy Prime Minister Nick Clegg said Britain’s libel laws have become an international embarrassment because they are too plaintiff friendly, and vowed to put an end to “libel tourism”. It remains to be seen why so senior a politician should wish to deprive Britain of much needed foreign exchange by deterring tourists who will book expensive hotels, see the sites and spend well over £100 per hour on legal fees, but leaving this aside, Mr Clegg is obviously ignorant of just how plaintiff friendly any civil litigation is not. It has to be said also that many of those currently campaigning to “reform” the law of libel are not motivated by idealism but by vested interest, and in some cases by malice.
The first thing to note is that civil litigation is always expensive, and sometimes all parties will lose regardless of the verdict: all parties in this case means the plaintiff(s), defendant(s) and even the lawyers. In Britain, the court has an absolute discretion to award or not to award costs, and these costs can be challenged – a process known as taxing – which may require considerable further expense.
Libel cases can be heard either by a judge sitting alone (with the agreement of both sides) or by a jury, and juries have absolute discretion as to the quantum of damages they award to a successful plaintiff, from an astronomical sum to the lowest coin of the realm.
Lord Alfred Douglas is best remembered today as the catamite of Oscar Wilde, but later he was also the editor of a short lived but particularly nasty magazine callled Plain English. In 1923 he sued the Morning Post newspaper which had published a letter from the Editor of the Jewish Guardian, who had accused him of making money out of inventing “vile insults against the Jews”. The implication was that Douglas was in it for the money – he certainly wasn’t – the jury found for the plaintiff, but awarded him a farthing damages. Later, he was gaoled for criminal libel on Winston Churchill.
In 1982, Peter Hain – a future Minister in the Labour Government of Gordon Brown – sued the National Front’s Martin Webster for libel over a claim that he had supported political violence, in particular that he had hailed a terrorist murderer as a hero. Hain won the case, but was awarded only £5 damages, considered derisory. Webster said that if Hain wanted to recover his costs, he would have to bankrupt him.
In Wraith v Wraith [1994] the jury showed either their contempt at having their time wasted or their sense of humour. Wealthy businessman David Wraith sued his ex-wife Shirley for slander; among other things she claimed he had given her a social disease after consorting with ladies of the night on a trip to Holland. Mr Wraith won his case, and was awarded £69 damages, the price of a bottle of champagne in an Amsterdam night club. Both parties were ordered to pay their own costs, and the judge said the case should never have come to court.
Although libel cases can be slow, some civil litigation particularly medical negligence cases, can drag on for years and years. Because of this, and because of the high cost for both plaintiffs and defendants, the government of the day asked Lord Woolf, then Master of the Rolls, to conduct a review of the entire system. The Woolf Reforms – Access to Justice – have certainly speeded up litigation, but the new Civil Procedure Rules – which came into force on April 26, 1999 - have led to increased court fees, the penalising of litigants-in-person, and added Draconian penalties, including strike outs, on both plaintiffs and defendants for non-compliance. Plaintiffs have actually been abolished; the person who brings an action is now known as the Claimant, and those bringing actions for defamation have fared worse than most. By 2001, the cost of issuing a libel writ had risen to £500.
Much of the current agitation for “reform” stems from a series of actions brought against bookshops in the 1990s. The owners of these bookshops believed there should be a statutory defence of innocent dissemination for bookshops, and other distributors. Such a defence already existed, but innocent in this connection means unknowing, and these particular “radical” bookshops were anything but innocent or unknowing.
From 1993, three men brought actions against a magazine called Searchlight; they also sued the magazine’s printer, distributor, and a number of bookshops. Three of the bookshops concerned also stocked a wide variety of literature including Green Anarchist and similar publications that incited violence against police officers and others. In November 1997, three of the men behind this magazine were each gaoled for three years for “incitement to cause persons unknown to cause criminal damage", although their convictions were overturned on appeal.
After being hit with their third libel writ, these bookshops started a campaign, and one of their supporters, the left wing Labour MP Jeremy Corbyn, raised the issue in the House of Commons, accusing two of the plaintiffs of practising “selective terrorism”. The third plaintiff was Morris Riley, an accountant and former serviceman who sued Searchlight Magazine Ltd; its publisher Gerry Gable; the columnist Ray Hill; and the magazine’s printer, Russell Press Ltd. Russell Press paid £5,001 into court, and this offer was accepted. Shortly before the trial commenced, the first, second and third defendants paid a total of £750 into court. This payment was not accepted.
A payment into court is one of the pitfalls of which every libel litigant must be wary; if the plaintiff wins his case, but is awarded less than the sum paid in, he will be liable for all the costs of the defendant after the date of the offer.
Morris Riley won his case, and on February 23, 2000, he was awarded £5,000 damages against Gerry Gable, Searchlight Magazine Limited and Ray Hill, although because he had already accepted and received the £5,001 offered by Russell Press Limited, he received no further payment. The two sides were still haggling over the costs in June the following year when Mr Riley died from a heart attack at the relatively young age of 55.
While the case of Riley v Gable & Others was being decided at the High Court, a far more notorious case was being heard in an adjacent building literally yards away. The historian and author David Irving was suing the American historian Deborah Lipstadt and her publisher for libel. Coincidentally, Gerry Gable, the first defendant in the other case, had been arrested and fined for burglary artifice at Irving’s London home in November 1963! Irving v Lipstadt dragged on and on without the defendant taking the stand, unusually, and wisely in this case, and the following April, Mr Justice Gray ruled that the defendants had proved the sting of the libel.
Irving was subsequently bankrupted, but somehow still managed to find the funds to jet around the world, delivering speeches to the faithful, and thriving on his newfound notoriety.
Immediately after the verdict, the historian Andrew Roberts wrote correctly in the Sunday Telegraph of April 16, 2000, that Irving was a master showman who had bought publicity worth far more than he could have bought for that amount in costs, and ended with the bald statement that although Penguin and Lipstadt were correct to defend the action “this will ultimately be seen as a case that David Irving was allowed to win”. Which brings us to cyberspace.
Although the Defamation Act , 1996, attempted to bring the law up to date, eleven years ago when Irving v Lipstadt was being decided, the Internet was nowhere near the force that it is today, and there is now considerable case law relating to defamation in cyberspace. There are big and indeed unique problems relating to defamation here. The medium is difficult if not impossible to police, defamatory postings can be made totally anonymously, and in spite of Google and other search engines and tools, it is likewise difficult if not impossible to track every single defamatory posting.
Godfrey v Demon Internet, which dates back to 1997, established the parameters of innocent dissemination. In his judgment, Mr Justice Morland alluded to American law but pointed out that “The impact of the First Amendment has resulted in a substantial divergence of approach between American and English defamation law. For example in innocent dissemination cases in English law the Defendant publisher has to establish his innocence whereas in American law the Plaintiff who has been libelled has to prove that the publisher was not innocent.”
However, an ISP or website that removes defamatory material promptly on receipt of a complaint, has done as much as is practical, and clearly has an absolute defence in English law. The Youtube website is particularly adept at removing potentially embarrassing material promptly, usually on receipt of a claim by a copyright holder. Boxing matches and other sporting events that find their way onto the site immediately after being screened by a pay-per-view network can be removed literally within minutes of being uploaded.
In view of the recognition of the realities of Internet publishing and defamation by the British courts, the only publisher who needs fear a libel writ in most cases is the mainstream newspaper or magazine, and any publisher of any size – including broadcasters – will have at least one in-house lawyer who will review possibly contentious material before it reaches the web. Though there are genuine concerns over the state of defamation law in Britain, most of those espoused by vested interests are not genuine, but are raised by people or publishers who feel they should have the right to heap scorn, bile and vitriol on anyone they choose with total impunity.
That being said, there are alternatives to litigation for people who have been libelled or feel they have been treated unjustly in some other way by the print media. One is to publish a rebuttal. Although Naomi Campbell won her privacy case against the Daily Mirror, she would have been better advised to approach a rival publication and sell it an exclusive about her struggles with substance abuse stressing the way her self-confidence had been undermined by muckrakers. There is also the Press Complaints Commission, which adjudicates a fair number of complaints regularly, and has the power to compel many British publications to publish corrections or apologies for breaches of the PCC’s code of practice. The PCC will consider complaints from foreigners as well as British citizens, and publishes the result of its adjudications regularly.
This opinion article was written by an independent writer. The opinions and views expressed herein are those of the author and are not necessarily intended to reflect those of DigitalJournal.com
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