English libel law has now officially been found guilty of violating human rights reports Helen Searls, legal coordinator of LM's defence against ITN's libel writs
A repugnant law
At a time when New Labour has taken to preaching to the rest of the world about the sanctity of human rights, it was fun to see the government getting a taste of its own medicine. English libel law has now been officially judged as repugnant and a violation of human rights. In a strangely under-reported case, a US court has decreed that 'the principles of English libel law fail to measure up to the basic human rights standards and are repugnant to public policy and the constitutional ideal of free speech' (Times, 2 December 1997).
The US Maryland State Appeals Court reached this conclusion after it was asked to enforce an English libel award made by a UK court (and upheld by the House of Lords) against a US citizen. This was meant to be a routine request, since US courts regularly enforce British judgements. In this instance, however, the US court refused to cooperate with the UK court. Such is the repugnance of English libel law, the defendant was told that the damages award of $416 000 would not be upheld in America.
So what is it about English libel law that makes it so repugnant not just to those, like us at LM, who face crippling libel actions, but even to the US judiciary? It does not take a legal genius to see that the law of defamation in Britain is a blatant violation of all the principles of natural justice.
For instance, one of the first tenets of our legal system is that we are all equal in the eyes of the law. Obviously this principle does not always hold true in practice, but in libel law there is not even the pretence of any kind of equality between the rich and the rest.
Libel law is a law for the super-rich. Parliament decided long ago that there should be no legal aid in libel actions. Journalists who publish truthful accusations against the rich and powerful, but who do not have access to six figure sums in their bank accounts, have little prospect of successfully defending themselves against a libel action in court. As a result most defendants settle actions in the early stages of a legal proceeding rather than run the risk of mounting legal bills. Since settlement always incorporates an undertaking never to repeat the alleged libel, the rich can routinely issue libel writs to silence their critics.
Libel law also violates another basic principle of justice - that the defendant is meant to be innocent until proven guilty. In libel cases the burden of proof is the other way around. The defendant is assumed to be guilty of def-amation unless he can prove his innocence. And so long as the plaintiff can prove that the alleged libel was published to a third party, the plaintiff does not even have to prove that he has suffered any real damage, since damage is assumed by the court. As leading lawyer Mark Stephens of Stephens-Innocent has commented, this is 'the one inexplicable exception to our rules of judicial process' and it weights the odds heavily in the plaintiff's favour.
Plaintiffs win about 90 per cent of all libel cases that get to court. When one considers that defendants only contest the tiny percentage of cases in which they feel they have a reasonably good chance of winning, it is clear that this is an extremely one-sided fight.
Added to these unappealing odds, the defendant may also have to weigh up the additional price that has to be paid for pleading truth or justification as a defence. If the defendant pleads truth as their defence and then fails to prove their case in court, the jury is allowed to award the plaintiff additional damages. The defendant is deemed to have aggravated the damage to the plaintiff by continuing to claim the alleged libel to be true throughout the trial. Perversely then, in a libel case a vigorous defence can make things worse for the defendant.
Mind you this assumes that the defendant has the luxury of a trial by jury - another basic assumption of our legal system. In recent high profile cases like the McLibel trial and Jonathan Aitken's action against the Guardian, plaintiffs have successfully demanded that the judge dispense with a jury before the case is even heard. Worryingly judges now deem many libel cases to be too complex for ordinary mortals to understand. Why this should be is unclear. The Aitken case seemed relatively simple to me. It all boiled down to who paid the Paris Ritz hotel bill, hardly a matter to tax the greatest legal minds in the land.
But despite these failings, what is truly rep-ugnant about English libel law is the manner in which it enables individuals to hire the courts for personal gain and at the same time undermine the public interest in full and frank debate. It is this aspect of the law that really stuck in the craw of the Maryland Court judges. The US court reviewed the case and held that the two published pieces which had been branded libellous over here should simply have been seen as 'rhetorical hyperbole' and part of 'vigorous public debate'. In their view, the English libel law in general and this judgement in particular ignored the right to free speech - a fundamental right that guarantees the free flow of ideas and opinions on matters of public concern.
In English libel law there is no such thing as a public interest defence. It is no defence in the English courts to claim that an allegedly libellous article raised an important matter of public interest and therefore deserves full and frank public discussion. Libel law deems that it is more important for a man to defend his reputation, than for society as a whole to uncover the truth through thorough public enquiry. In America, by contrast, where a public interest defence does exist, it would have been impossible either for McDonalds or ITN to sue their critics for libel.
Given that the libel law has now been deemed to be so repulsive to human rights, will our human rights champions in the New Labour government be looking to reform the repugnant legislation? Don't hold your breath. In a letter dated 4 December 1997, Ms Jenny Foote of the Law Reform Branch of the Lord Chancellor's Department told me that they were 'unaware of any widespread demand for reform of the Act and there are currently no plans to do so'. It seems when it comes to human rights and due process the British government follows the maxim 'Do as I say, not as I do'.
Reproduced from LM issue 107, February 1998