Britain's New Libel Bill: Better on Libel Tourism, But Worse on Anonymous Online Speech

Britain's effort to reform its defamation laws and shed London's title of "libel capital of the world" has been chugging along for several years, but now it looks like it's in sight of the last stop: The government unveiled its proposed new defamation bill in early May.  So what has all this time and effort wrought?

(Before I get into it, note that I use "Britain" and "British" in this piece to as shorthand for England and Wales.  The Scots and Northern Irish have their own legislative bodies and will not be beholden to this bill.)

One Step Forward...

First, the good news: The bill does make noteworthy progress on the problem of libel tourism. 

If you are unfamiliar with the phenomenon, libel tourism is the practice of bringing libel lawsuits in Britain, where defamation laws are very plaintiff-friendly, even in situations where the case has limited connection to the jurisdiction. 

The poster child for libel tourism in London is Rachel Ehrenfeld, a US author who in one of her books laid out an argument accusing Saudi banker Khalid bin Mahfouz of financing terrorism.  The book in question was published and sold primarily in the US; a scant 23 copies were sold in Britain.  Nonetheless, bin Mahfouz sued for libel in London, winning a default judgment of $225,000 against Ehrenfeld.

Unfortunately for Ehrenfeld, she couldn't avoid the judgment at the time simply by staying out of Britain.  Bin Mahfouz could have sought enforcement in the U.S. courts under comity principles, keeping the threat of the judgment alive.  Indeed, it was Ehrenfeld's situation (and its terrorism undercurrent, no doubt) that led several states and the federal government to enact libel tourism bars like the SPEECH Act of 2010.  Under the Act, U.S. courts will now not recognize foreign libel judgments if those judgments do not stand up to a First Amendment analysis. Still, the risk of libel tourism judgments remains for those in other jurisdictions, particularly the European Union.

Despite what some commentators would have you believe, this is a real problem.  Admittedly, it's not a problem for the Brits.  But it's a problem for the rest of the world that has to deal with the fallout from Britain being such a weak spot in the wall of free speech protections.  And I'd argue that it doesn't do the British any favors when the rest of the free world thinks their law is of dubious quality.

The reasons for libel tourism being such a problem in London are myriad.  Among the holes in British law: 

• British courts have a tendency, illustrated by the Ehrenfeld case, to be overenthusiastic in finding they have jurisdiction to hear defamation cases.  That makes it very easy for plaintiffs to bring cases that should otherwise be heard in less friendly litigative environs.
• Britain lacks a "single publication" rule.  This is particularly pernicious online, as it means every time a website is accessed, it is considered "republished," thereby resetting the statute of limitations.
• British law offers only amorphous, watered-down protection to journalists who use due diligence and report responsibly. While the "Reynolds defence," established in Reynolds v. Times Newspapers Ltd., offers some protection for reports in the public interest that may be defamatory, it is no New York Times v. Sullivan. British judges have interpreted Reynolds in a number of ways that are less than protective of the media.  In addition, Reynolds was undermined by the Court of Appeal in 2010's Flood v. Times Newspapers Ltd.
• While the defense of truth exists, the truth of an offending statement must be proven true by the defendant.  This is just the opposite of the US, where the burden is on the plaintiff to show the statement's falsity.

Fortunately, the new defamation bill addresses all these points, with generally positive results. 

Section 9 reins in the British jurisdiction by establishing that a court "does not have jurisdiction to hear and determine an action to which this section applies unless the court is satisfied that, of all the places in which the statement complained of has been published, England and Wales is clearly the most appropriate place in which to bring an action in respect of the statement."  This should put a stop to Ehrenfeld-type situations, where British jurisdiction over the dispute is tenuous at best.

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