Economics and similar, for the sleep-deprived

A subtle change has been made to the comments links, so they no longer pop up. Does this in any way help with the problem about comments not appearing on permalinked posts, readers?

Update: seemingly not

Update: Oh yeah!

Friday, February 08, 2013

From my email outbox, on UK libel laws ...

It's also worth adding that [Simon, in an article] Singh is quite inaccurate in his discussion of the UK libel laws.  The points he makes are:

1.  "Defendants are guilty until proved innocent, a reversal of normal

This isn't a reversal of normal practice; even (informed) libel reform campaigners recognise that this is more or less intrinsic to the nature of libel  (  It's similar to "the burden of proof" being on someone accused of trespass to prove that he has the legal right to be where he is.  It's actually the practice in the USA too, except as modified by the very unusual public figure doctrine.

2.  "On the other hand, claimants do not even need to prove that they have been damaged in any way".  I think he must mean that defendants don't have to prove specific harm - they do have to show that they have a reputation in England & Wales to defend (subject to a test which libel reformers think is not stringent enough), and if you have a reputation, then libel to it is itself a harm.

3.  "Moreover, there is no robust public-interest defence".  Just not true.  There is Reynolds qualified privilege and there are all the protections in the European Convention and the Human Rights Act 1998. I suspect that what Singh means here is that there isn't a catch-all- come-free libel-as-you-please clause for people who are acting "in the public interest" by being on the right side in public debates about alternative medicine or terrorist funding or what have you.  And of course nor should there be; the rule of law doesn't work like that.

4.  "When it comes to censoring publications and blocking online content, it is arguable that Britain has an even worse record than Hitler!".  (Actually he said "an even worse record than China", but it's hardly more ridiculous when altered for comic effect).

5. With regard to the "Funding Evil" lawsuit:  "The case was held in London, because an international businessman such as Mahfouz can claim a reputation in almost any jurisdiction".  He had a house and several
businesses there.

6.  "Mahfouz was able to play high-stakes poker with Ehrenfeld and push a $1 million stack of chips on to the libel table. Ehrenfeld and her publishers could not afford such losses as it would have meant bankruptcy, so they backed down, settled early and paid £30,000 damages and £80,000 in costs".  Actually Mahfouz desperately wanted the case to be heard so he could clear his name and spent a lot of time and effort providing evidence to allow the judge to make a ruling on the facts in any case.  Ehrenfeld never responded to the case, preferring to whine to the US press about the awful British courts. She also never refuted any of Mahfouz's case in subsqeuent US editions of her book, leading an awful lot of people who had supported her to feel rather burned.

In general, this debate is very confused.  There are a large number of issues:

a) Mr Justice Eady specifically, and whether he is too plaintiff-friendly (this is the only *legal* issue at stake in Singh's case, btw, which is otherwise an utterly straightforward one of a journalist having made a careless remark which was susceptible to a libellous interpretation, and not wanting to wear the consequences, combined with a plaintiff who is unattractive for unrelated reasons).

b) the extortionate cost (which I suspect is what Singh is *really* upset about and who can blame him.  It's unfortunately a consequence of the generally massive expense of the British courts, basically as a result of the opportunity cost of lawyers' time being so high because their next best thing to do is a massive international commercial case, of the sort that is always heard in England (legal tourism! oh noes!) because our legal system is so good).  But something probably could and definitely should be done here.

c) whether the UK should be the second country in the world to adopt the NYT vs Sullivan standard for public figures (which the British media love the idea of, because it would be carte blanche; anyone else should be very frightened of what might happen when British journalistic standards of ethics were loosed from any legal restriction at all).

d) whether the UK should refuse access to its courts to foreigners libelled here (which would be contrary to European law) or restrict that access more than it currently does.

e) whether Americans specifically, as Lord Hoffman says "should only have to say civis Americanus sum to cloak [themselves] in the immunity of the First Amendment against liability for injury which [they have] caused in a foreign country"

f) whether the burden of proof ought to be changed for defendants not subject to Reynolds qualified privilege (which already removes the burden of proof and substitutes a test of "responsible comment"). Which is more arguable, but leaves the unattractive prospect of someone like Robert Murat having his life destroyed because he can't prove he's not a sex offender.

Which of these ones are you actually up in arms about, [snip]?  I suspect that it's the public figure defence, but it needs to be recognised that this is a very US-specific feature and one that was invented quite recently by the Supreme Court in response to a specific historical situation in the Civil Rights period.  Other countries don't have the USA's history of vexatious libel and SLAPP suits so it's reasonable that we've made the  tradeoff differently.


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