Throwing our judicial junk in Britain's backyard (or courts)
LONDON — Britney Spears recently sued the National Enquirer in a court in Belfast. That's right, in Ireland. She took the Enquirer to court for claiming that her marriage to Kevin Federline is in tatters. Ms. Spears hired a Belfast lawyer to squash the rumors and punish any publication that dares to repeat them. Last week, the Enquirer published an apology and retraction of the claims.
Why Belfast, Britney? Why didn't you fight this battle on your own home turf, where the Enquirer first made the claims about your marriage being on the rocks?
Spears's legal team traipsed some 5,000 miles from the singer's home in California to Belfast because it knew that the libel laws in the British Isles are grossly skewed in favor of claimants (those doing the suing).
Spears has joined the "libel tourism" brigade, a growing band of celebrities and wealthy business people who sue in Belfast or London because they know they'll get speedy results and whopping damages. That might be nice for the celebrity claimants. But it's bad for those of us who live in Britain permanently. These libel tourists are helping to prop up our illiberal, antidemocratic, and "repugnant" libel laws, which are an offense to free speech and open debate.
Other stars, including singers Whitney Houston and Paula Abdul, are also reportedly set to sue in Belfast. London, meanwhile, is still known as "A Town Called Sue," such is its popularity among libel tourists. Claimants can sue in Britain if the publication that allegedly slandered them is available here – so even though the National Enquirer is based in Florida, it is also published in Britain, which means Team Spears can argue that the alleged libel was repeated in this country.
One of the more bizarre instances of libel tourism occurred last year. The film director Roman Polanski, a Pole by birth and now a French citizen, sued Vanity Fair, an American magazine, in the High Court in London. He won his case, and Vanity Fair was forced to stump up $50,000 in damages.
It isn't difficult to see why some individuals sue American publications in Britain rather than the US. Under America's laws of defamation, claimants have to prove that what was said about them was false. Under our libel laws, believe it or not, the claimant does not have to prove falsity – only that the allegedly defamatory statement was potentially damaging to his or her reputation. In America there is a "public-figure defense," which makes it difficult for people in the public eye to sue for libel. In order to succeed, they would have to show not only that the allegations were false, but that they were made maliciously or with reckless disregard for the truth. Not so in Britain.
Our libel laws are unjust and undemocratic. Libel is that rare area of law in the United Kingdom where the defendant – the person being sued – is not innocent until proved guilty. Rather, it is assumed that his words were misleading or damaging to the claimant; thus the defendant must prove his own innocence rather than the onus being on the claimant to prove his guilt. That goes against every principle of natural justice.
Furthermore, legal aid is not available in libel actions. Legal aid is when state funds are provided to less well-off people who must pay lawyers and prepare legal cases. You can get legal aid for all sorts of criminal and civil cases, but not for libel cases. So our libel laws are known as "The Rich Man's Law," because only those with millions of pounds at their disposal (libel cases are notoriously expensive) can afford to sue.
It is not uncommon for defendants to be made bankrupt, lose their homes, and for publications – including one I worked on in the late 1990s – to be forced to close as a consequence of libel actions.
The worst thing about our libel laws is the chilling effect they have on free speech. Libel hangs like a constant threat over writers and publishers. Newspapers, magazines, and publishing houses employ "libel readers," cautious creatures who advise whether certain claims might get the publication into trouble. Often scoops and exposés are not published, as the thought of having to defend oneself, often at a cost of millions of pounds over a period of months or even years, is too much to bear.
Our libel laws can harm American writers, too. Recently, a New York-based author was sued by a Saudi billionaire in London, on the basis that 26 copies of her book, which allegedly slandered him – a book published in America – were sold through Internet booksellers to people living in Britain. Now, some American publishing houses are considering restricting the sale of their books in Britain. It is little wonder that in 1997 a US court – the Maryland State Appeals Court – refused to enforce an English libel ruling against an American citizen, arguing that: "[T]he principles of English libel law fail to measure up to the basic human rights standards and are repugnant to ... the constitutional ideal of free speech."
Britney, Whitney, Roman, and the rest – please stop using these repugnant laws. You are helping to undermine freedom of speech in Britain, and further afield too.
• Brendan O'Neill is deputy editor of spiked (www.spiked-online.com).