April 20, 2010
by Elizabeth Samson
The House of Commons recently abandoned libel reform legislation, endorsed by justice secretary Jack Straw, which sought to reduce fees lawyers can claim under conditional fee agreements. Straw has said that fees for defamation lawyers "seem to […] incentivis[e] 'libel tourism'" – the practice of international forum shopping for defamation cases – in England. This legislation is one of several measures – such as expanding the definition of "fair comment", and strengthening the public interest defence – introduced to overhaul England's centuries-old, and arguably antiquated, libel statute. English PEN and Index on Censorship have warned that England risks becoming a "global pariah" because libel tourism threatens free speech. But it seems that the reformers' efforts thus far have not gone far enough.
First and foremost, England should amend its libel laws to shift the "burden of proof" – the responsibility of a party to provide evidence to prove his case – from the defendant to the plaintiff. Libel tourism flourishes in England because its libel law is "plaintiff-friendly", as opposed to US law which favours the defendant. Under English law, a libel defendant is guilty until proven innocent, resulting in a disproportionate number of libel cases both from British citizens and "libel tourists" who sue their critics in London. Libel tourists know that forcing the defendant to prove his innocence may lead to a retraction of the alleged libel and discourage other writers from publishing similar statements – known as the "chilling effect" on free speech.
History may reveal why England and the US have different burdens of proof. The common law of criminal libel originated in the court of star chamber at the Palace of Westminster where the earliest recorded cases of libel are found. The star chamber's purpose was to protect the sovereign from criticism, insurrection and breaches of the peace by trying libel, treason and sedition cases against nobles who were too powerful to be tried in lower courts. The star chamber – infamous under Charles I for issuing rulings favouring the king – was eventually abolished in 1641 by parliament's Habeas Corpus Act, passed the year before. Although the court dissolved, it set the standard for criminal libel as being any statement that was disparaging, regardless of its truth.
England's Glorious Revolution of 1688 and bill of rights of 1689 further enhanced parliament's powers and limited those of the crown, yet respect for authority still influenced the exercise of expression. To date, the English bill of rights only protects "freedom of speech and debates or proceedings in parliament" but does not provide guarantees for the general population. Traditionally, English society was a hierarchical system based on nobility, status and honour. Even after the monarchy was no longer central to politics and the power of the House of Lords had diminished, deference to social betters remained a key part of the political order. So the burden of proof remained – if a person insulted someone's honour, that person was responsible for proving his own case.
Criminal libel rejected the truth defence but civil libel allowed it because private claims posed a lesser threat to public order. However, a truth defence offers less protection than a presumption of truth. Though US law largely derives from English common law, America's founding fathers diverged on the issue of fundamental freedom. The American bill of rights, adopted in 1791 to protect citizens from the tyranny of a king or strong central government, enshrined that protection in the bill's first amendment, which prohibits Congress from making laws that "abridg[e] the freedom of speech, or of the press". Honour and status, though important, were not as central to political life in America. Freedom was paramount so the presumption of truthfulness eventually became the cornerstone of American libel law as a result of two monumental US cases.
The first case was the trial of New York Weekly Journal publisher John Peter Zenger (1735), who was charged with seditious libel for publishing fact-based articles criticising England's appointed governor, William Cosby. Zenger's lawyer, Andrew Hamilton, did not dispute the allegations against his client but argued that a true statement could not be libellous. English libel law was established for instances where the "King's safety or honour was concerned", so Hamilton argued that an incident in New York does not have the "dangerous consequences that it might in Westminster Hall" and that England's libel law should no longer apply. Despite Zenger's confession of "guilt", Hamilton convinced the jury to disregard the law as immoral and unjust – a practice called jury nullification – and Zenger was acquitted.
While often celebrated as a victory for freedom of speech and of the press, neither English nor US libel laws changed because of the Zenger trial. The case opened the door, however, to broader free speech rights, and it set the stage for what was to come.
The second case, of People v Croswell (1804), resulted in a break with English precedent and officially established truth as a defence to libel in America. In this case, Harry Croswell was criminally charged with seditious libel of President Thomas Jefferson. After the lower court convicted Croswell, he appealed to New York's supreme court, which was then the state's highest bench. Alexander Hamilton – unrelated to Andrew – defended Croswell on appeal, arguing that freedom of the press was "the right to publish, with impunity, truth with good motives for justifiable ends, though reflecting on government, the magistracy, or individuals". As New York law was still derived from English law, the court upheld Croswell's conviction. But the following year, the New York state legislature incorporated Alexander Hamilton's argument and amended New York's criminal defamation statute to include the truth defence to libel. More significantly, this led to the presumption of truth in libel cases – placing the burden on the plaintiff to prove falsehood.
As seen in the previous cases, a sense of injustice can catalyse real change. On 30 April 2008, New York Governor David Patterson enacted the Libel Terrorism Protection Act, introduced by New York state assemblyman Rory Lancman, to safeguard Americans from the dangers of libel tourism. The impetus for the legislation was an article I wrote in December 2007 entitled "Last Stop on the Libel Tour", which discussed the case of an American writer with a de minimis connection to England, convicted of libel in absentia by the high court. The writer asked the New York state court of appeals to prevent enforcement of the foreign judgment. Consequently, assemblyman Lancman informed me that he had read my article and was inspired to introduce legislation to protect Americans from libel tourism because English libel law was at odds with the free speech protections of the US Constitution.
Assemblyman Lancman and I did not predict that our writing – his ground-breaking legislation and my article – would lead to the swift enactment of new law in New York, congressional legislation entitled the Free Speech Protection Act, and ultimately to renewed discussion of libel reform in England.
England has, indeed, made progress towards meaningful libel reform. What is known as the "Reynolds defence" has served as a beacon of hope for libel reformers. The case of Reynolds v Times Newspapers (1999) extended to the mass media the "qualified privilege" defence, which provides protection from a defamation lawsuit for responsible journalists who publish information that is in the public interest, even if the information is found to be untrue. The case of Jameel v Wall Street Journal Europe (2006) affirmed the Reynolds defence and streamlined its guidelines. The lawyer for the Journal stated that "[t]he decision is an important step in moving freedom of speech closer to that enjoyed by the US media under the First Amendment."
This may be true, but it is not close enough.
The Reynolds defence is similar in its application to the standard derived from the landmark US case of New York Times Co v Sullivan (1964), which requires the plaintiff to show that the publisher acted with "actual malice" – knowledge that the published information was false or recklessly disregarded the truth. However, in the US, the plaintiff must prove the defendant acted with actual malice, while in England the defendant must invoke the Reynolds defence and prove his own innocence – English libel law is still "plaintiff-friendly", in other words. Those who are endorsing the codification of the Reynolds defence are perhaps cheering too early. A more broadly effective libel reform measure would be a shift in the burden of proof to the plaintiff, thereby eliminating many potential libel tourism cases.
In another measure, on 12 January 2010, England's obsolete criminal libel law was eliminated by section 73 of the Coroners and Justice Act of 2009. But the civil libel statute that remains is anachronistic. In modern-day England, requiring that the libel defendant bear the burden of proof is a requirement that is a relic of the past – a prop or support for a hierarchical structure that no longer exists and serves no real purpose.
It is ironic that the defendant's burden of proof was established to protect people's honour, but it has now resulted in the public disgrace of London as the "libel capital of the western world". Laws that were initially designed to protect the integrity of the crown through the courts are primarily being used to enable foreigners to misuse the English judiciary for their own ends – silencing the speech of their detractors. The time has come to set things right and make the libel plaintiff prove his case.
Elizabeth Samson was previously a Visiting Fellow at Hudson Institute until 2012.
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