Trouble with UK's libel laws

When on January 5, 2010, Lalit Modi, the former Indian Premier League chairman, posted two tweets alleging that New Zealander cricketer Mr Christopher Cairns had had a “past record in match fixing,” linking it to the decision not to include the New Zealander in the IPL auction list, it is unlikely that he realised the full implications of his actions.

All became clear a little more than two years later, last Monday, when Justice Bean of London's High Court handed down a verdict awarding Mr Cairns 90,000 pounds in damages plus costs.

The judge concluded that Mr Modi had failed to provide “any reliable evidence” of match fixing, or even grounds for strong suspicions of that charge.

The allegation was as “serious an allegation as anyone could make against a professional sportsman,” the judge ruled.

The defence's attempts to quash the case in a pre-trial hearing on the basis that few Twitter users in Britain had seen the original tweets (the first was seen by an estimated 65 people in England and Wales, and the second was in response to a question from Cricinfo) failed to convince. The judge described as “misguided” the defence's description of the case in its closing arguments as an example of libel tourism.

The judge argued that Mr Cairns' schooling in England, and involvement in county cricket in the country for 15 years, not to mention Mr Modi's residence since 2010, made that argument redundant.

HIGH COSTS

Still, Mr Modi isn't the first to point to the reputation the city has gained internationally as the go-to-destination for libel action.

In fact, Mr Modi himself has initiated a libel case against England and Wales Cricket Board (ECB) Chairman Giles Clarke regarding an email sent to the Board of Control for Cricket in India.

While the damages and costs from Mr Cairn's suit won't hurt Mr Modi, the scion of the wealthy Modi Enterprises family, too much, there have long been concerns that Britain's libel laws, by emphasising the right of a person to protect her/his reputation, and placing the imperative on the defendant to prove the veracity of their statement, inflicts serious damage on free speech, favouring those with enough resources to bring cases with rather tenuous links to Britain.

“It is a rich man's game,” says Ms Caroline Kean, head of litigation at London-based law firm Wiggins.

“London is used as the court of choice, simply because the law is mostly in the claimant's favour, and simultaneously, the courts have been far too lax in accepting cases where jurisdiction is questionable,” says Mr Mike Harris, the head of advocacy at campaign group, Index on Censorship.

In 2007, for example, a Ukranian businessman sued the Kyiv Post and a Ukranian internet news organisation with minimal British viewers.

The case was thrown out. Then there was that of Mr Hardeep Singh, an Indian-origin British freelance journalist, who was taken to court in London by Baba Jeet Singh Ji Maharaj, a Punjab-based Holy man, regarding an article published in the Sikh Times in 2008, with just 300 readers in Britain.

“My case involved a foreign national 4,000 miles away in Punjab, suing in London,” he said in an email interview. The case was eventually dismissed by the court but proved a harrowing experience.

“Libel is an emotional and financial nightmare, this is due to the uncertainty of litigation, complicated court procedure, and huge cost burden,” he said.

The academic realm, too, has been hit hard: fears that the laws could stifle the ability of academics to give their honest takes on things grew after Mr Simon Singh, the author of Fermat's Last Theorem and other scientific and mathematical books, was sued by the British Chiropractic Association over an article he had written in The Guardian .

The case was eventually dropped following a successful appeal, but many aren't so fortunate. Often defendants, fearful of the mounting costs (a British libel case is estimated to cost 140 times the average of continental Europe, according to a Cambridge University study) settle at an early stage in the proceeding, says Mr Harris.

The procedure can also be particularly perplexing and long drawn out, says Ms Kean. The way it works at the moment is that the claimant and defendant both have to say what they think the allegedly libellous words mean, and it's up to the jury to determine the meaning. However, as the defendant doesn't know which meaning the judge will accept, it often involves having to make a defence assuming both their interpretation of it and that of the claimant.

LEGAL CHANGES

Matters have only been complicated by social media: while blogs and Twitter cases have become the focus of much attention, it is often review sites, message boards and online forums, which raise new questions on where to draw the line between a simple expression of opinion, and a potentially libellous statement, and how long after a statement is published a libel claim can be made (not to mention the responsibility of the hosting website).

With the years, Britain's system has garnered international criticism: in 2008, the UN Committee on Human Rights warned that the current system “served to discourage critical media reporting on matters of serious public interest, adversely affecting the ability of scholars and journalists to publish their work,” while in 2010 the US passed the Securing The Protection of our Enduring and Established Constitutional Heritage (SPEECH) Act, stopping US courts from enforcing foreign libel judgments.

The Act was seen as being aimed at protecting US journalists, academics and writers from British law, following cases such as that of a US author who had been sued by a Saudi citizen though just over 20 books were sold to Britain over the Internet.

“It is a humiliation for our system that the US legislators should feel the need to take steps to protect freedom of speech from what are seen as unreasonable incursions by our courts,” a British parliamentary report concluded.

Change may finally come this year. A long-awaited Defamation Bill is expected to be included in the Queen's Speech — a parliamentary occasion when major government legislation is announced.

The Bill being proposed — and which could come into force by the end of the year — is expected to close the door on libel tourism by requiring the claimant to show that Britain was the natural forum for the case (such as the major damage to his or her reputation being done in Britain) for it to become permissible in court.

And while it will still be up to the defendant to prove the veracity of their statement, the claimant will have to prove “substantial” harm to their reputation, preventing trivial cases from being brought forward. “It's a huge step forward,” says Mr Harris.

However, the campaign group believes that the addition of safeguards (such as requiring the claimant to prove “serious” damage and restricting corporations' ability being able to bring cases, as Australia has done) would be even better for the protection of free speech.

While libel tourism may go, Ms Kean is less optimistic that the legislation will alter the fundamental issues with the current system. “The problem is the practice and the procedure,” she says.

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