The Web May Force Change in Great Britain's Libel Laws

[R.A. Hettinga]

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The Wall Street Journal
OPINION: INFORMATION AGE
DECEMBER 20, 2009, 8:16 P.M. ET

A Town Called Sue
London doesn't want to be a destination for 'libel tourism.'

By L. GORDON CROVITZ

For hundreds of years, England chose the protection of people's  
reputations over encouraging free speech. After little more than a  
decade, the Internet is about to defeat ancient tradition. Chalk up  
another revolution to the Web.

Members of Parliament plan changes to ancient libel laws in response  
to London's having become the preferred venue for litigious Saudi  
bankers, Russian oligarchs, squabbling academics and American  
celebrities. The plaintiffs are increasingly authors and bloggers who  
are more sympathetic than the big-media defendants of past years.  
Justice Secretary Jack Straw says he'd like to stop "libel tourism,"  
while giving people in England more of the free speech that the Web  
enables.

In the U.S., plaintiffs have to prove statements about them are false,  
and public figures must prove reckless disregard for the truth. In  
England, defendants have the burden of proof, with statements presumed  
to be false. Plaintiffs from around the world sue in England based on  
the fact that Web sites can be viewed anywhere, including there, even  
if few Brits read the alleged libel or care about the plaintiff's  
reputation. One proposed reform is that 10% of the readers of an  
article must be in England to justify a lawsuit.

England's speech-chilling libel law grew out of an earlier  
technological revolution. The invention of the printing press caused  
the king and his advisers to fear popular opinion. Manuscripts once  
written for limited circulation gave way to pamphlets and mass  
newspapers. In 17th-century England, the Court of the Star Chamber  
targeted political speech, with criticism of the government viewed as  
an offense. Truth was no defense. Indeed, a maxim was that "the  
greater the truth, the greater the libel."

Americans preferred free speech. In 1735, a New York City jury  
acquitted newspaper publisher John Peter Zenger, who'd been charged  
with seditious libel for criticizing the English governor. The jury  
established that in the colonies, truth was a defense against libel  
charges.

Although England eventually recognized truth as a defense, it retained  
the balance in favor of protecting reputations at the cost of  
discouraging robust debate. Lawyers now joke that London has become "A  
Town Called Sue." Litigants may have only a most tenuous connection to  
England. For example, a Boston company sued a British cardiologist in  
London for criticism he made at a U.S. conference about the clinical  
trials of a device used in heart surgery. An article about the  
criticism was posted on an American medical news site accessible from  
England. As one critic put it, "An English scientist gives an  
interview in America to a Canadian journalist and an American online  
magazine about an American company and ends up getting sued in London.  
If he loses he will be bankrupt."

An Icelandic businessman used London courts to sue an Icelandic  
academic for comments he'd posted on the University of Iceland's Web  
site. A Ukrainian businessman sued in England against a Ukrainian- 
language, Ukraine-based online news site. A Tunisian successfully used  
English courts to sue an Arabic-language television network based in  
Dubai that could be viewed via satellite in Britain.

Some high-profile cases have been brought by people accused of  
bankrolling terrorists. American author Rachel Ehrenfeld sold just 23  
copies in England of a book called "Funding Evil," which accused a  
Saudi banker of channeling money to al Qaeda. He sued. Ms. Ehrenfeld  
refused to acknowledge the court's jurisdiction. The court entered a  
default judgment against her. New York state responded with a law  
making it hard to enforce English libel judgments.

But centuries of jurisprudence can't hold back the power of the Web to  
alter the balance between free expression and reputation. In a world  
of global real-time communication, England sees it is harming itself  
by suppressing the free flow of information.

Science writer Simon Singh, author of "Fermat's Enigma," was sued by  
the British Chiropractic Association for an opinion article he wrote  
last year describing chiropractic remedies for asthma and ear  
infections as "bogus." To Americans, this sounds like the usual back- 
and-forth of opinion. But English courts have told Mr. Singh that  
he'll lose the case unless he can prove that the chiropractic industry  
association was deliberately dishonest. Editors of medical journals in  
England told Parliament that they fear being sued if they publish  
studies that criticize earlier research.

It is true that American law makes it hard to protect reputations. But  
the Web, with its instantaneous global publishing, provides a balance,  
allowing more voices to be heard, including those of aggrieved parties.

The Web has become the ultimate court of public opinion, where  
reputations can be attacked but also defended and rehabilitated. Libel  
law makes judges the arbiters. On the Web, we're the arbiters.