Free speech dies in the land where it was born

Britain’s Muzzled Press

By Myles Harris

Amanda Knox, the young American who spent four years in an Italian jail for the alleged murder of her British flatmate, Meredith Kercher, recently published her memoirs. You may or may not think much of Knox, who was eventually acquitted of the murder charge, but you might like to know what could happen to your daughter if, when she was on holiday in Italy, she knocked somebody down in an accident and had to face time on remand in one of the country’s prisons. What it has to say about the Italian penal system is shocking. British readers, however, will not be able to read Knox’s book. It is to be published worldwide with the exception of the United Kingdom. The reason? Knox has already been the object of numerous libel actions in Italy, and, until recently, practically anybody could sue anybody for libel in Britain even if neither party had ever set foot on British soil.

For years, if a British libel lawyer felt he no longer liked the color of his Porsche, he simply had to find a client wanting to bring a libel action and could look forward to a car with a better hue. Unless the intended target was enormously rich, the case would never get to court. Like a visit from the Sopranos, a libel lawyer’s letter was an offer most people couldn’t refuse. In Britain, a defamation action could cost up to 140 times more than one in any other European state. Defendants had to settle or risk an action involving court costs in excess of $150,000 and, potentially, unlimited damages. 

Moreover unlike in America, British libel law places the onus of proof on the defendant, not the plaintiff. While national newspapers with pockets as deep as the Grand Canyon were willing to take on such a burden, practically anybody else who lived by the pen lived in terror of a writ. A single case could be sufficient to close a local newspaper or propel an individual into bankruptcy. Insurance premiums against libel were of the “catastrophic” variety.

Britain has never been an open society. We have no First Amendment and no constitutional right to bear arms. The church is not separate from the state nor the judiciary independent of the establishment. Elizabeth the Second is Chief Magistrate and Head of the Church of England. Guided by frightfully well-spoken men who read classics at Oxford or Cambridge—science degrees are seen as the province of mere mechanicals—and on the advice of her ministers, she appoints judges to put us in prison and bishops to order our consciences. Until recently these Gilbertian arrangements, a mixture of privilege, pomp, and common law, (since Britain has no written constitution our judges are able to make law on the hoof), ensured sufficient protection for ordinary folk. Libel, however, like fox hunting, remained exclusively a sport of the rich. 

ABOUT EIGHT YEARS ago the rules changed with the introduction of U.S. style contingency fees. Lawyers began offering “no win no fee” deals. Libel became a matter of business, not class. Where previously, m’learned friends joked, a barrister would not defend anybody in a libel action if he had not been to Eton, or at a pinch Harrow, now anybody could take a punt even if the closest they had ever been to either school (both called public schools even though they could not be more private or privileged) was passing it on a bus. London, went another joke, had become “a town called Sue.”

Sordid games attract sordid players. With London becoming the center of world finance, wealthy foreigners, some of dubious reputation, began coming here to sue. Arabian princes, who cared more for their camels than the brutalized inmates of their prisons, Russian oligarchs who had dipped their fingers too deeply in the post-Soviet honey pot, international ne’er do wells, spivs, and outright crooks intent on silencing their critics, made for London. In most cases they did not even have to put in an appearance. Upfront lawyers’ fees—in one recent case the pre-trial costs alone came close to half a million dollars, which the defendant is liable for if he or she loses—were often sufficient to produce the silence of the dead. Book shredding took an upturn.

Then came a shredding too far. An American journalist published a book in the U.S. criticizing Khalid bin Mahfouz, a notorious Arab serial libel tourist (now dead), alleging he had provided financial support to Islamic terrorist groups. Although the book was not published in Britain, 23 copies were sold here online, and in 2008 Mahfouz sued the journalist in London. The unhappy writer declined to recognize the court, thereby losing by default. She was ordered to pay $225,000 in costs and damages. But why should she recognize the court? What was a British court doing trying a case involving two foreign nationals with no connection to the country?

What was seen by many in America as a judicial mugging proved too much for Congress. It passed the SPEECH Act making judgments by foreign libel courts unenforceable unless 1) the foreign law provides as much protection as the First Amendment; or 2) the libel case would have succeeded in a U.S. court. 

Congress had the British establishment on the run, something not seen since John Wilkes annoyed George III, and Parliament acknowledged that libel tourism was bad for free speech. This April, despite numerous attempts to sabotage it, a Defamation Act was passed banning plaintiffs who have no connection with Britain from seeking redress in British courts. The act also added a public interest defense, immunity for peer reviewed scientific publications, a test for “serious harm” and “honest opinion,” and it banned companies from suing unless they could show a substantial trading loss as a result of the libel. The burden of proof, however, remains on the defendant. Website operators also remain worried. It is a defense to say that the libelous material was posted by one of the site’s users, but only if the author is “readily apparent” to the complainant and the website operator has complied with yet to be agreed rules on how to respond to a notice of defamation. Despite the restrictions on libel tourism, site operators are going to be exceedingly jumpy about allowing anonymous bloggers, including any from countries where it is dangerous for a political dissenter to reveal his identity. 

THE NEW BILL, an improvement on the old, was nearly derailed when left-wing peers in the House of Lords tried to import recommendations from a parallel inquiry into press freedom and privacy being conducted by Lord Leveson. Newspapers and magazines would face exemplary damages if they failed to get prior approval for controversial articles from an “independent” regulator. They would also be compelled to join a public arbitration service making it much easier for an individual to get at them if he or she felt they had been wronged. When a court awarded damages it would take into account whether a publication had signed up to arbitration or not and award swinging penalties if it had not. Lord Lester, the author of the Defamation Act, said of the proposed changes, “The scheme would be totally incompatible with human rights and free speech. Instead of self-regulation, you would have a coerced system of arbitration.” Fortunately the amendments, an insight into the totalitarian minds of many in the upper reaches of British society, were dropped at the last minute. 

For the press of any country to do its constitutional job of ambushing those in power, it needs, like any combat unit, to acquire the services of informants and spies, to make its plans in secret, and to be sudden in its attack. One of its chief purposes is to embarrass, humiliate, and sometimes ruin the powerful who have done wrong. One of the great secrets of America’s success is that freedom of the press is virtually absolute. Parliament wants to put a stop to such practices here.

In 2009, the Daily Telegraph published a list of MPs allegedly stealing from the public purse by falsifying their expenses. A handful went to jail. The majority, although no more inconvenienced than if they had received an unexpectedly large tax demand, now regarded the press as their enemy. It was, some allege, therefore no coincidence that soon after public interest began to intensify over illegal payments to the police by the press, of reporters eavesdropping on the victims and relatives of the most awful murders, and that the Ogre Murdoch’s papers were heavily involved. 

Attention focused on Milly Dowler, a 13-year-old girl who was abducted and murdered on her way home from school in March 2002, and whose body was not found until September of the same year. During the period she was missing and after she was murdered it was alleged that News of the World (shown in these photographs during its heyday) reporters had secretly gained access to her mobile phone and deleted some messages to free up space in case anybody phoned. This misled her parents into thinking she was still alive. Although the allegation that messages on her phone were deleted was never proved, public outrage was palpable. By 2011 a full hue and cry against the press was in progress, ending in 2012 with dawn raids by the police on the homes of suspected journalists more reminiscent of an enthusiastic dictatorship than familiar England.

The public were delighted. Having chewed over each salacious morsel of how the press were supposed to have interfered with Milly Dowler’s phone, they were now being offered desert in the form of flame haired Rebekah Brooks, one of the Murdoch empire’s most senior executives and a dining companion of the prime minister. They giggled delightedly as they watched her ascending the steps of the Westminster Magistrate’s Court in December to answer charges of making corrupt payments and conspiring to unlawfully intercept communications.

She trod those court steps to the music of the Leveson Inquiry—ostensibly an investigation into press abuse, in reality a legal Teddy Bears’ Picnic with generous supplies of honey for lawyers (£1.5 million in fees). The inquiry, opened the previous year, began with a pious litany about the need to protect press freedom while preserving as far as possible the privacy of those in the public eye. In reality it is the little people, those far from the public eye, and the least powerful, who are being spied on as never before, not by the press, but by authority. About 1.85 million closed-circuit cameras, one for every 32 people, watch us as we go about our daily lives. Soon every telephone call we make will be recorded, every penny we spend noted, every e-mail read. Even when we go abroad government satellites can track us to within a few feet. 

Leveson did not stoop to consider such trivialities. Instead it recommended setting up “an advisory service to editors in relation to considerations of the public interest in taking particular actions”—that is, what they might publish. One may as well pass a law making generals submit their battle plans to the enemy, or force the police to scrap their criminal intelligence units.

In order to ensure its political independence, the advisory service would be incorporated under Royal Charter like the BBC. Yet the BBC is a haven for socialists and has to its credit the winning of two recent elections for Labour. It is supposed to be independent, but you would have to search its vast corridors for many weeks before you found anybody reading Britain’s right-wing Daily Mail. Even more chilling was a proposal that the Information Commissioner should issue “practical guidance” in relation to data handling. One can hear the noise of advancing government shredding machines. 

Parts of Leveson are law, created by separate acts that establish one or more independent regulatory bodies recognized and overseen by a “Recognition Panel” protected by law from amendment by Parliament as well as clauses “that would impose the risk of exemplary damages on any newspaper declining to subscribe to the new regulator.” Few seem to have remembered of the protecting amendment that parliaments are not bound by their predecessors.

This has caused a serious confrontation between the press and government of a kind unseen since Charles I and the Court of the Star Chamber censored anti-royalist publications.   If a newspaper or magazine does not agree to this censorship, could it be forced to pay the costs of anybody who sues, even if the latter loses the case, like a burglary victim paying a robber’s travel expenses? Investigative journalism will cease to exist with most papers becoming versions of the celebrity nuzzling Hello magazine. Very few papers or magazines would be able to withstand more than a handful of such actions, which, as they are risk free to the plaintiff, could be brought for the most trivial reasons. Editors fear they will be faced with enormous numbers of such cases handled by “writ farmers,” the libel equivalent of ambulance chasing lawyers. So far there has been little movement on either side. The majority of British newspapers and magazines, left and right, say that they will refuse to sign such a charter. Lawyers are said to be queuing to fight the first case of an award of exemplary damages against a paper in Strasbourg under the Human Rights Act.

Information is like steam; close all the valves and sooner or later there will be an explosion. Each time a new means of spreading information, of relieving the pressure, is discovered, the authorities rush to tighten the valves. Just as the most savage societal wars were fought following the invention of movable type, so with the Internet. In the early years of the Reformation, people learned how much the church had deceived them. Now with the Internet, we have never before been made so aware of the extent of corruption in high places. Blogging, Facebook, Photoshop, long range cameras, the discreetly placed digital recorder, and Dropbox have done more for press and public freedom than three centuries of struggling for justice with pen and paper. Sitting at my computer, with a world of information at the reach of a key, I want to keep it that way. America can help by making life even more unpleasant for the British libel industry.