Dec 17, 2019

Written By David Carnes

Libel law: past, present and future

Dec 17, 2019

Written By David Carnes

Defamation occurs when someone damages the reputation of another by publicising a false statement. It is generally classified as “slander” when it is delivered in spoken form, and “libel” when it is delivered in written or recorded form (including a recording of speech that would otherwise be classified as slander). UK libel law has been criticised as being so plaintiff-friendly that overseas litigants are flocking to the UK to engage in “reputation laundering” in UK courts.

The history of English libel law

The precursors to libel law were developed in the ecclesiastical courts as a lightly-sanctioned criminal offence (punishable by penance). The first clear example of a civil libel statute appeared in the Statute of Westminster in 1275. No distinction between libel and slander was made until hundreds of years later, which is unsurprising since the law was passed long before the invention of the printing press.

Libel claims did not become actionable in common law until the 16th century, at which point three types of false accusations were actionable:

- Falsely accusing someone of a crime;

- Falsely accusing someone of professional or vocational incompetence; and

- Falsely accusing someone of having a particular disease, especially an STD.

By the 17th century, the volume of litigation began to increase, due in part to a dramatic increase in the number of allegations of defamation against the sexual reputations of female litigants. Currently, libel law throughout much of the Commonwealth and beyond is ultimately based on English common law.

The Defamation Act of 1996

The Defamation Act of 1996 specified three elements of a libel claim:

- The defendant must have communicated a false statement of fact (not mere opinion);

- The statement must have identified or referred to the plaintiff;

- The statement must have been published.

Several defences are available, the most important of which is known as “justification”—the defence that the statement was true, which will defeat almost any libel claim.

The Defamation Act of 2013

The Defamation Act of 2013 significantly transformed the libel law of England and Wales in a manner that grants far more latitude to the press. Indeed, at least one study concluded that it resulted in a 27% decrease in libel lawsuits between 2013 and 2015. Some of its major reforms include:

Libel tourism (“forum shopping”): in former years, litigants from overseas commonly brought libel claims in domestic courts, even with only a minimal presence in the UK, because it was easier to win libel lawsuits in the UK than in their home countries. US defamation law, for example, is notorious for the difficulty that litigants face in proving their case against a defendant. Under the Defamation Act of 2013, however, a litigant from outside the EU must prove that the UK is the most appropriate jurisdiction in order to bring suit there under the Defamation Act. It remains to be seen how Brexit will affect the application of the law to EU litigants in the future.

The “serious harm” test: the new law requires litigants to prove that the allegedly libellous statement caused, or was likely to cause, “serious harm” to their reputation. This provision is designed to discourage frivolous litigation and is likely to see its greatest effect in discouraging libel lawsuits against little-known online publications.

The right of a business to sue for libel has been restricted. A business may only sue for libel if it has suffered, or is likely to suffer, a “serious financial loss” as a result of the libel.

All libel cases will be heard by judges rather than juries unless the appropriate court issues an order for a jury trial.

Expanded privilege against libel liability: The UK has a long-standing tradition of “privilege” under libel law. Under the privilege doctrine, someone protected by a privilege cannot be sued for communicating what would otherwise be considered libellous content.

Under the new law, libel privileges have been expanded to include:

(i) Most material contained in scientific papers, conferences and publications;

(ii) Website owners, for the content of comments, as long as they observe a “report and remove” policy (re-moderation is not required to avoid libel liability).

(iii) Articles based on information that was provided by public companies;

(iv) Articles based on information that was provided at press conferences;

(v) Reports of government proceedings from anywhere in the world; and

(vi) Reports of international government conferences and international court proceedings.

A public interest defence has been added, whereby the defendant can prevail by proving that the allegedly libellous statement concerned a matter of public interest, and the defendant reasonably believed that it was in the public interest to publish the statement.

The statute of limitations for web-based publications has been shortened to one year after first online publication, instead of the previous standard of one year after the most recent view or download.

The Defamation Act of 2013 is a significant advancement of freedom of the press because it clarifies previously murky areas of libel law. When journalists are unsure about the rules, they tend to err on the side of caution, resulting in significant self-censorship. In other words, it’s not what you’re reading that matters the most—it’s what you’re not reading.

The fear has always been that the courts will chip away at the legislation through creative interpretation of its provisions. This appeared to be happening in the case Lachaux vs Independent Print and another, in which the Court of Appeal ruled that damage to a plaintiff’s reputation could be imputed rather than proven. Fortunately, however, this potentially dangerous precedent was overruled by the Supreme Court in June 2019.

Legal threats facing UK journalists

Despite the great leap forward that the Defamation Act of 2013 represents, more is needed to keep journalists safe from legal harassment. Following is a description of only a few of the many legal dangers and annoyances faced by journalists and publishers in the UK.

The Burden of Proof problem

In the UK, the burden of proof in a libel case is on the defendant. In other words, it is not up to the plaintiff to prove that the statement in question is false—it is up to the defendant to prove that the statement is true. It is often difficult to prove the truth of a statement one way or the other—and when neither side submits convincing evidence, the party with the burden of proof loses. This one aspect of UK libel law likely causes more self-censorship than any other.

A significant barometer of publishers’ persistent willingness to self-censor is revealed in attitudes towards the publication of the Scientology tell-all book and film Going Clear. The Church of Scientology was able to intimidate publishers out of publishing the book in the UK, while the film received only low-key screenings in a few theatres.

The fact that this self-censorship occurred after the Defamation Act of 2013 came into force illustrates that more needs to be done to protect press freedom in the UK. Some of this may have to be done by the press itself, however, if the UK refuses to reform libel law to reverse the burden of proof.

SLAPP lawsuits

Strategic Litigation Against Public Participation (SLAPP) lawsuits are designed not for the purpose of victory, but to intimidate and harass the defendant by costing him time and money, in the hopes of shutting down the investigation or discussion of a matter of public concern. SLAPP lawsuits are usually launched by special interests that will benefit from shutting down debate. In the UK they are often aimed at journalists by using libel laws as an excuse.

There are no objective means of determining whether or not a given lawsuit constitutes a SLAPP lawsuit, because identifying a lawsuit as a SLAPP lawsuit requires inferring the motives of the plaintiff. Nevertheless, below are some examples of journalists and authors who fought defamation lawsuits that were widely perceived as SLAPP lawsuits:

Maltese Journalist Daphne Caruana Galizia, who was a defendant in 42 separate libel lawsuits (most of them in the UK) at the time that she was murdered in 2017;

British journalist Carole Cadwalladr, who is being sued by Brexit campaigner Aaron Banks for her coverage of the Cambridge Analytica scandal;

American author Rachel Ehrenfeld was sued in England by Saudi billionaire Sheikh Khalid Bin Mahfouz after she published the book Funding Evil: How Terrorism is Financed—and How to Stop It.

Although many US states have passed anti-SLAPP legislation that seems to have been at least partially effective, there is not likely to be a way of ending them entirely.

The 5th Money Laundering Directive

The 5th Anti-Money Laundering Directive (5AMLD) will go into effect in January 2020. Although this new law is directed at money laundering rather than free speech or defamation, critics fear its potential impact on UK libel law.

Under 5AMLD, journalists and researchers who wish to access the new register of beneficiaries of foreign trusts that own property in the UK, will have to present evidence of wrongdoing before they are allowed access. The main fear is that presenting evidence of money laundering could trigger an investigation that could drag on for years before access is finally granted, thereby hobbling investigative reporting. This state of affairs, in turn, could embolden money launderers.

Of course, since 5AMLD is an EU law, Brexit throws its future into uncertainty. The majority view is that 5ALD will go into effect in the UK for at least a while—but after that, all bets are off. A no-deal Brexit would render the situation even more uncertain. This could be seen as a window of opportunity, however, because UK journalists may have the opportunity to influence the course of events between now and the time the issue is finally resolved.

Fighting back

Resistance is growing to restrictive libel-based laws that inhibit journalistic freedom. That resistance is not limited to the media—it exists even within the legal system itself, and at some very high levels. Several top-level UK prosecutors have exhibited very protective attitudes to journalists who violate the law in the course of performing their duties.

One of the most prominent examples is Keir Starmer, former director of public prosecutions (DPP), who spearheaded the drafting of prosecutorial guidelines to protect journalists who break certain laws in the public interest. The courage this took must have been contagious because the same principle was incorporated into the “public interest” defence against libel contained in the Defamation Act of 2013.

Reform from within the profession

In many cases, a journalist will base a story on facts that he knows to be true, but which he is not certain he can prove in court with admissible evidence. In other cases, a journalist or a small publisher may lack the financial resources to defend against SLAPP lawsuits filed by wealthy special interests.

Much of this risk could be mitigated by the formation of an industry-wide fund to support beleaguered journalists. Ultimately, however, it may come down to intestinal fortitude. Journalists are simply going to have to act boldly and risk subjecting themselves to liability, just as they often risk their lives reporting from war-torn areas. Perhaps the trade of journalism needs to be re-conceptualised to render courage just as much of a qualification as it is for a soldier.

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