Defamation Law

Julian Lewis Excerpts

Thursday 15th July 2010 Westminster Hall

[Mr Whittingdale]

The flexibility that that might provide is clearly better than having a very detailed set of boxes, each of which has to be ticked. The hon. Gentleman’s suggestion is probably a sensible way to develop things.

Taken together, all these issues would go some way towards not weakening our libel laws, but restoring people’s absolute right to defend their character and reputation. The other side of that coin, however, is the right of the press to investigate and to expose, and the right of scientific journals to carry out legitimate debate. I hope that all those things will feature in the Government’s draft Bill.

I turn now to the way Britain’s libel laws are viewed overseas, because that should be of huge concern to the Government. The issue is encapsulated in the case of Rachel Ehrenfeld, whom the Committee met when it went to the States. She wrote a book in which she suggested that a Saudi Arabian business man, who has Irish citizenship, was in some way providing financial support to al-Qaeda and terrorism. An action was brought against her in the UK on the basis that 23 copies of the book had been sold here. Obviously, it was also accessible on the internet, so there was publication in that sense as well. However, the book was not widely available in the UK, and it is fairly clear that the case was brought here not because this was where the damage was done, or because Rachel Ehrenfeld or the Saudi Arabian had British citizenship, which they did not, but because the libel laws here were seen to favour claimants. On the back of that, we discovered that there are now widely shared fears in the United States. The Association of American Publishers submitted a statement to the Committee on the Judiciary of the US House of Representatives, which described libel tourism as

“the cynical exploitation of plaintiff-friendly foreign libel laws as a weapon to intimidate and silence U.S. authors and publishers.”

There is no doubt about which foreign libel jurisdiction it had in mind.

[Dr Julian Lewis (New Forest East) (Con)]

I am not an expert in the area in question, although I have more than once had to bring a libel action. I think I am right in saying that in America pretty much anyone in the public eye can falsely be accused of quite serious wrongdoing but will have no recourse to a defamation suit. I acknowledge that the case that my hon. Friend used as an example is worrying, but I hope that he will not argue that we should adjust the libel laws in this country to prevent people who are defamed from taking action, just because in America people who are defamed are not allowed to take action. It would be a retrograde step to allow open season on reputations to the extent that that is allowed in the USA.

[Mr Whittingdale]

My hon. Friend raises an important point, and I agree. My hon. Friend the Member for Shipley (Philip Davies), who sadly cannot be present, thinks that we should move towards the American system, where two things apply. First, the burden of proof is reversed and it is up to the people concerned to prove that they did not do what is alleged, whereas here a newspaper or journal must demonstrate that they did. Secondly, in America the first amendment trumps virtually everything. It is essentially impossible to get a pre-publication injunction. The Committee was told by people in public life that for such people there is essentially no defence against libel other than to make their case in public and try to convince people that what was said was wrong.

I do not go that far. Some of the criticism of the UK’s libel laws in America is based simply on the fact that they disagree with our stance and think that we should adopt their system. That is not the reason I am concerned. I am concerned about the use of the UK courts by people who have no connection with the UK; it is the tourism aspect. That is a much narrower, but nevertheless very important, issue. As an example of the consequences I want to quote a joint submission to the Select Committee by Advance Publications Inc., the Association of American Publishers, Associated Press, Bloomberg, CBS television, Global Witness, Human Rights Watch, the Los Angeles Times, Macmillan, NBC, The New York Times and others. Perhaps the most important passage reads:

“Leading US newspapers are actively considering abandoning the supply of the 200 odd copies they make available for sale in London—mainly to Americans who want full details of their local news and sport. They do not make profits out of these minimal and casual sales and they can no longer risk losing millions of dollars in a libel action which they would never face under US law. Does the UK really want to be seen as the only country in Europe—indeed in the world—where important US papers cannot be obtained in print form?”

--- Later in debate ---

[Helen Jones]

My hon. Friend highlights an interesting suggestion by the Select Committee, but the issue that we must grapple with is whether solicitors’ firms would be prepared to take cases in those circumstances. That is why I welcome the Minister’s commitment to publishing a draft Bill, and to having pre-legislative scrutiny of the issue. I do not believe that there is a debate between us about what we want to achieve, but there is and must be a debate about how we achieve it. The law in this area, as has been said many times, is extremely complex and difficult, so it is right that the House examines it in detail, goes through the process of pre-legislative scrutiny—the previous Government also intended to do that—and comes to a proper conclusion.

We certainly want to protect the media’s right to publish articles that are in the public interest—we all know that that is slightly different from being interesting to the public—and we all want to protect the right of scientists to engage in proper scientific debate and discussion. That is vital. It is also important that people can protect themselves from malicious and untrue attacks. I was pleased to hear the Minister and others accept that we must get the balance right.

[Dr Lewis]

I totally agree with the hon. Lady’s measured approach. On a couple of occasions when I was defamed, I knew that the sources were malicious opponents, and in a recent case a political opponent at a general election. Such people do not have the guts to publish the libel; they go to a newspaper, which then publishes it, and the malicious source is protected by the newspaper, which says that it must guard its sources and never reveal them. Before we lose too much sleep over the plight of newspapers when attacking individuals’ reputations, let us remember that, to some extent, they bring much of it on themselves by happily recycling malicious falsehoods put forward by people who do not have the guts to say it for themselves.

[Helen Jones]

Unfortunately, the hon. Gentleman has far more personal experience of defamation actions than me. It is important to stress that it is fundamental to free society that we protect the rights of investigative journalists to publish comments that may be uncomfortable for people and which they may not want published, but which it is in the public interest to publish. At the same time, we must protect individuals from malicious and untrue attacks. How we engage with the draft Bill when the Government publish it will be a test of the House’s seriousness. It is true—we have experience of this—that pre-legislative scrutiny improves legislation. This time, we have a chance to get the laws on defamation right for a generation.

Hon. Members who have spoken in the debate and the various Select Committees that have looked at this subject have made valuable contributions, and I look forward to discussing the issue further. The House should engage in that complex process and draw on the valuable experience that is provided by a number of hon. Members, either through the Committee or, as was unfortunately the case for the hon. Member for New Forest East (Dr Lewis), through personal experience. I am sure that there is good will in all parts of the House to ensure that the legislation works.