London, Libel Capital No Longer? The Draft Defamation Act 2011 and the Future of Libel Tourism

[Excerpt] “In the past decade, London emerged as the forum of choice for “libel tourists”—strategic, often foreign, plaintiffs who bring defamation actions in a jurisdiction with plaintiff-friendly libel laws, even if they and the defamatory material at issue lack a substantial connection with that jurisdiction. England’s defamation laws and procedures make it significantly easier for claimants to commence and prevail in libel actions than do the laws and procedures of many other countries, particularly the United States. As a result, English courts have entertained several high-profile defamation cases involving foreign parties who have only tenuous connections to England, such as disputes between a Saudi billionaire and a U.S. journalist; a Russian businessman and a U.S. magazine; and a French director and a U.S. publisher. Cases like these have cemented London’s reputation as the “libel capital of the world.” The establishment of that notorious title, reflecting the notion that England does not value free expression as highly as other countries, has helped ignite a movement to reform English libel laws and procedures. On March 15, 2011, the U.K. Ministry of Justice unveiled a draft bill entitled the Draft Defamation Act 2011, proposing a substantial overhaul of English libel laws as well as the procedures applied in libel actions. The Draft Act aims to combat the perception that England is a refuge for libel tourism by, among other reforms, requiring English courts to determine whether England is the most appropriate forum in which the action should be heard before exercising jurisdiction. The Draft Defamation Act comes less than one year after the enactment of the Securing the Protection of Our Enduring and Established Constitutional Heritage (“SPEECH”) Act of 2010 in the United States. The SPEECH Act prohibits U.S. courts, both state and federal, from recognizing or enforcing defamation judgments rendered by a foreign court unless that court applied a standard that was as protective of free speech as a U.S. court would have applied. In the context of libel tourism, this means that a libel tourist cannot force a U.S. author or publisher to comply with a foreign judgment unless a U.S. court finds that the judgment comported with First Amendment principles. This Note analyzes the efficacy of the Draft Defamation Act and its impact on the enforcement of English defamation judgments in U.S. courts. Specifically, it proposes that the Draft Act’s procedural clauses will effectively reduce the prevalence of libel tourism in England. Moreover, this Note argues that, in light of the Draft Act’s reforms as well as longstanding principles of international comity, U.S. courts should not narrowly construe the SPEECH Act to require exact congruence between U.S. and English defamation laws. Finally, this Note presents evidence suggesting that England’s problem of libel tourism could be supplanted by the new phenomenon of privacy tourism. Thus, in addition to modifying and enacting the Draft Defamation Act, English policymakers should consider reviewing and possibly reforming English privacy laws. This Note proceeds in four sections. Section II provides a background to issues related to libel tourism, including its prevalence in England and the U.S. response to it. Section III reviews the Draft Defamation Act’s procedural clauses related to libel tourism. Section IV analyzes the Draft Act’s potential to eradicate libel tourism and its effect on U.S. courts’ construction and application of the SPEECH Act. Section IV also proposes modifications to the Draft Act, including the adoption of a defamation-specific choice-of-law rule. Finally, Section V explores the interplay between English defamation and privacy laws, considering whether the Draft Act’s aim to eliminate libel tourism inadvertently opens the door to the development of privacy tourism

The Defamation Act 2013: We need to talk about Corporate Reputation

This article, firstly, contextualises corporate reputation as a valuable commercial asset; secondly, it considers whether, as the law stood before the Defamation Act 2013, there was an inequality of arms; thirdly, it analyses what the requirement of serious harm and the qualification of serious financial loss may mean in practice for corporate claimants, and the right to reputation. Specifically, through the lens of Tesla Motors Ltd v BBC, this article considers potential causation issues that corporate claimants may encounter when attempting to establish actual or likely serious harm arising from actual or likely serious financial loss and, consequently, questions whether this may result in an increase in applications by defendants for statements of case to be struck out in accordance with CPR 3.4, and for summary judgment pursuant to CPR 24

The Defamation Act 2013: What exactly is ‘a body that trades for profit’?

Clarifies the phrase ‘body that trades for profit’, and predicts how the courts are likely to interpret it. The article considers four particular types of non-human claimant, namely charities, housing associations, trade associations, and holding corporations. There remains some confusion over the likely implications of Parliament’s use in the Act of the phrase ‘a body that trades for profit’. There are several persuasive authorities from areas of law other than defamation suggesting that the courts should interpret the phrase ‘a body that trades for profit’ to mean 'a body that trades for the purpose of making profit for distribution to its members'

The Defamation Act 2013: a free speech retrospective

Five years down the line from the Defamation Act 2013 coming into force, its effect on freedom of speech may be examined. Through case law, various clauses of the Act are examined, with the conclusion that the impact of the Act could have been much more thorough had the Act effected structural changes in the law of defamation. A comparative analysis with the system followed in the United States of America illustrates alternative options available in this area of law which would be more conducive to enable freedom of expression

The Problem of Trans-National Libel

Forum shopping in trans-national libel cases- libel tourism - - has a chilling effect on journalism, academic scholarship, and scientific criticism. The United States and Britain (the most popular venue for such cases) have recently attempted to address the issue legislatively. In 2010, the United States passed the SPEECH Act, which prohibits recognition and enforcement of libel judgments from jurisdictions applying law less speech-protective than the First Amendment. In Britain, consultation has closed and the Parliamentary Joint Committee has issued its report on a broad-ranging libel reform bill proposed by the Government in March 2011. This Article questions the extent to which the SPEECH Act and the Draft Defamation Bill will accomplish their stated aims. The SPEECH Act provides little protection for hard-hitting investigative and accountability journalism by professional news organizations with global assets. The proposed British bill has important substantive limits. Moreover, even if Parliament approves reform legislation discouraging libel tourism, such actions may shift to other claimant-friendly jurisdictions. Global harmonization of libel law is neither realistic nor desirable. Instead, this Article proposes a two-fold approach. On the legal front, it supports the liberalizations of Britain\u27s proposed libel reform legislation and calls for foreign courts, when assessing the significance of contacts to the forum in cases affecting the United States, to consider seriously the importance of extensive First Amendment protections for political speech to the American concept of democracy. In addition, the Article calls for voluntary initiatives such as: 1) new approaches to help defend trans-national defamation claims when they are brought; and 2) measures to reduce the number of trans-national libel cases by improving the way in which the press does its job. The defense measures explored include the development of community-funded (rather than media-supported) libel defense funds; the formation of pro bono libel review consortia; and alternative approaches to increasing the availability of libel insurance. The recommended press-improvement measures include expanded access to documents, as well as the enhancement of accountability measures such as best-practices education, journalistic self-criticism, and updated codes of conduct

The Problem of Trans-National Libel

Forum shopping in trans-national libel cases- libel tourism - - has a chilling effect on journalism, academic scholarship, and scientific criticism. The United States and Britain (the most popular venue for such cases) have recently attempted to address the issue legislatively. In 2010, the United States passed the SPEECH Act, which prohibits recognition and enforcement of libel judgments from jurisdictions applying law less speech-protective than the First Amendment. In Britain, consultation has closed and the Parliamentary Joint Committee has issued its report on a broad-ranging libel reform bill proposed by the Government in March 2011. This Article questions the extent to which the SPEECH Act and the Draft Defamation Bill will accomplish their stated aims. The SPEECH Act provides little protection for hard-hitting investigative and accountability journalism by professional news organizations with global assets. The proposed British bill has important substantive limits. Moreover, even if Parliament approves reform legislation discouraging libel tourism, such actions may shift to other claimant-friendly jurisdictions. Global harmonization of libel law is neither realistic nor desirable. Instead, this Article proposes a two-fold approach. On the legal front, it supports the liberalizations of Britain\u27s proposed libel reform legislation and calls for foreign courts, when assessing the significance of contacts to the forum in cases affecting the United States, to consider seriously the importance of extensive First Amendment protections for political speech to the American concept of democracy. In addition, the Article calls for voluntary initiatives such as: 1) new approaches to help defend trans-national defamation claims when they are brought; and 2) measures to reduce the number of trans-national libel cases by improving the way in which the press does its job. The defense measures explored include the development of community-funded (rather than media-supported) libel defense funds; the formation of pro bono libel review consortia; and alternative approaches to increasing the availability of libel insurance. The recommended press-improvement measures include expanded access to documents, as well as the enhancement of accountability measures such as best-practices education, journalistic self-criticism, and updated codes of conduct

Reframing Libel - Taking All Rights Seriously and where it leads us

In preparing this paper, we have returned to first principles and re-evaluated fundamental aspects of libel law, its purposes, its substance, and its processes. Our thinking has been informed by, first, philosophical understandings of democracy and the public sphere and in particular the role of freedom of speech and of the media therein, and secondly, the social psychology of reputation and privacy. By doing this, we are able to ground some of the proposals for reform made previously by Index on Censorship, English PEN, Lord Lester, and others. We do so, however, not through the prism of an over-weaned emphasis on freedom of expression, but rather by triangulating the rights and interests of claimants, defendants, and the wider public. Ultimately, we recommend a coherent set of significant substantive and procedural reforms that if enacted would enhance access to justice and reduce costs for all but the most serious and/or most damaging libels. This involves the recommendation of the introduction of a two-track libel regim