RUTHFULLY YOURS

ON ENGLAND AND LIBEL LAWS…AND RACHEL EHRENFELD

Posted By Ruth King on December 21st, 2009

December 11, 2009

Britain, Long a Libel Mecca, Reviews Laws

By SARAH LYALL

LONDON — England has long been a mecca for aggrieved people from around the world who want to sue for libel. Russian oligarchs, Saudi businessmen, multinational corporations, American celebrities — all have made their way to London’s courts, where jurisdiction is easy to obtain and libel laws are heavily weighted in favor of complainants.

Embarrassed by London’s reputation as “a town called sue” and by unusually stinging criticisms in American courts and legislatures, British lawmakers are seriously considering rewriting England’s 19th-century libel laws.

A member of the House of Lords is preparing a bill that would, among other things, require foreigners to demonstrate that they have suffered actual harm in England before they can sue here.

English libel law is the opposite of America’s in many ways. In the United States, the plaintiff, or accuser, must prove that the statement in question was false; public officials must also prove that it was made maliciously, with “reckless disregard” for the truth.

In England (Scotland has its own system), the burden of proof rests on the defendant, whose statements are presumed false and who has to establish that they are true.

It is not only news organizations that are running afoul of the law. Environmentalists, anticorruption campaigners, medical researchers and soccer fans posting criticisms of their teams on blogs have all been sued or threatened with legal action in recent years.

The justice secretary, Jack Straw, said recently that he was alarmed about “libel tourism.” And in the House of Commons, a committee has listened to a parade of witnesses denounce the current law as perverse, unfair, prohibitively expensive, contemptuous of free speech and an anachronism in an age when access to articles on foreign Web sites can be obtained anywhere.

“We all have substantial and increasing concern at the potential of the English law of defamation to affect our work unjustly and oppressively,” a consortium of foreign newspapers, publishers and human rights organizations, including The New York Times, said in a statement to the committee.

Noting that “one ‘hit’ in England is enough for a multimillion-pound libel action in London,” the statement called England’s libel laws “repugnant to U.S. constitutional principles.” It said that because of the threat of costly lawsuits, some American newspapers were considering abandoning distribution here and installing firewalls to block access to their Web sites in England.

More than 20,000 people, including Richard Dawkins, the evolutionary biologist, have signed a petition saying that the laws “discourage argument and debate” and have no place in scientific disputes.

“It’s quicker and easier and simpler to apologize and settle,” said Simon Singh, the author of “Fermat’s Enigma,” who, having refused to apologize or settle, is battling the British Chiropractic Association over an editorial he wrote for The Guardian accusing the group of promoting “bogus treatments.”

Despite the law, or even because of it, some British newspapers have a deserved reputation for irresponsible journalism.

“We have a vicious, aggressive press here,” Nigel Tait, a partner at Carter-Ruck, a law firm that often represents plaintiffs in libel suits, wrote recently. “It’s all great — until someone writes something false about you.”

Because it can be expensive and traumatic to pursue a case, aggrieved parties like minor celebrities may be reluctant to sue. As a result, the scandal-sheet tabloids tend to focus on them rather than on the rich and powerful.

“I have a friend who is the editor of a national newspaper whose board has said to him, ‘Don’t take on the oligarchs; we simply cannot afford it,’ ” said John Kampfner, chief executive of Index on Censorship, which, along with English PEN, a group that promotes literature and human rights, recently produced a report on libel.

A number of states, including New York, have passed legislation making English libel rulings difficult to enforce in American courts. Congress is considering similar legislation.

The catalyst for the New York law was the case of the American scholar Rachel Ehrenfeld, who was sued in the English courts by a Saudi billionaire, Khalid bin Mahfouz, after she accused him of channeling money to Al Qaeda in her book “Funding Evil.”

The book sold just 23 copies in England, but that was deemed sufficient to allow Mr. Mahfouz to bring his case here. Ms. Ehrenfeld, who refused to participate in the case or submit to the court’s jurisdiction, was ordered in a default judgment to pay him more than $225,000.

Other cases seem even more strange. Hannes Gissurarson, a professor at the University of Iceland, was sued here by Jon Olafsson, an Icelandic businessman, over critical remarks that Mr. Gissurarson had posted on the university’s Web site five years earlier.

Mr. Gissurarson was ordered to pay £55,000, worth about $89,500 at current rates, to Mr. Olafsson, who had moved to London. But the case was thrown out when it emerged that the British Consulate in Reykjavik had improperly served the initial legal papers.

In a farcical riposte, Mr. Olafsson then sued the Foreign Office, winning several hundred thousand pounds in a judgment this fall.

In another case, NMT Medical, a company in Boston, has sued a British cardiologist over criticisms he made about a clinical trial of one of its products at a conference in Washington in 2007.

An article about the issue was subsequently posted on an American medical news site on the Internet. The cardiologist, Dr. Peter Wilmshurst, said that NMT’s lawyers then warned him that unless he retracted his statements, they would sue.

He refused. “What I said about the trial is, in my view, true,” he said in an interview.

“I feel I have an ethical responsibility not to falsify data,” he said.

Rick Davis, NMT’s chief operating officer, said that the company had taken action because Dr. Wilmshurst had “accused NMT of research fraud, and done it in a malicious manner.”

In similar circumstances, many would-be defendants, fearing financial ruin, simply remove the offending comments from the Internet as soon as they receive lawyers’ warning letters.

Legal fees can be dauntingly expensive. Mr. Gissurarson spent £100,000 on his case and had to sell his house. Dr. Wilmshurst has spent about the same amount, and counting.

Global Witness, which campaigns on environmental and human rights issues, spent £50,000 in less than a week deflecting the efforts of Denis Christel Sassou-Nguesso, son of the president of the Congo Republic, to force it to remove from its Web site a report accusing him of using national oil revenues to finance lavish spending sprees.

“It hasn’t discouraged us,” Patrick Alley, director of Global Witness, said. “But a protracted case could bankrupt an organization.”

“Even if a plaintiff is completely in the wrong,” he said, “they could break you.”

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