LONDON – The British government on Tuesday proposed changes in the law of defamation in England and Wales to provide greater protection for speech and publication and to discourage foreign claimants from seeking an easier ride in English courts.
The Department of Justice proposed that a statement must cause substantial harm to be defamatory, and it proposed statutory defenses of responsible publication, truth, honest opinion.
The department called for further consultation on removing a presumption that libel trials will be decided by juries, enacting a single publication rule to bar suits over the same material by the same publisher after a one-year limitation period, and on whether the law should give greater protection to secondary publishers such as Internet service providers, discussion forums and booksellers.
To discourage people from choosing to exploit English libel law, the department proposed denying jurisdiction in England and Wales unless it is clearly the most appropriate place to bring an action against someone who is not domiciled in the United Kingdom or the European Union.
"The right to speak freely and debate issues without fear of censure is a vital cornerstone of a democratic society," said Justice Secretary Kenneth Clarke.
"In recent years though, the increased threat of costly libel actions has begun to have a chilling effect on scientific and academic debate, and investigative journalism."
The draft bill will not apply in Scotland or Northern Ireland, which have separate legal systems.
England has earned a reputation as a favored destination for celebrities and big businesses — including McDonald's — to sue for libel.
A year earlier, Saudi businessman Khalid Bin Mahfouz successfully sued American author Rachel Ehrenfeld, director of the New York-based American Center for Democracy and the Center for the Study of Corruption & the Rule of Law, over a U.S.-published book about terrorism financing that had sold just 23 copies in the Britain.
In other cases, including those involving the National Enquirer, the circulation in Britain is larger.
A ruling in 2006, by the Law Lords, then the highest English court, recognized a defense of public interest as it overturned a judgment against The Wall Street Journal.
The U.S. Congress last year passed a law which forbids U.S. federal courts from recognizing or enforcing a foreign judgment for defamation that is inconsistent with the U.S. Constitution's guarantee of free speech guarantee.
Saudi businessman Mohammed Jameel sued the newspaper in the English courts after the report appeared in the Wall Street Journal Europe in 2002. The High Court ruled in 2003 that the newspaper had libeled Jameel and ordered it to pay $74,000 in damages, a judgment upheld in the Court of Appeal.
The Law Lords, however, ruled that even though the material was defamatory, the article was clearly in the public interest.
Last year, science writer Simon Singh won reversal of a libel judgment over a column in The Guardian newspaper which challenged the British Chiropractic Association's claim that chiropractic treatment could cure a childhood medical problems including colic and asthma.
In that case, the Court of Appeal approvingly cited a comment by U.S. Federal Judge Frank Easterbrook in a 1994 case.
Plaintiffs, Easterbrook said, "cannot, by simply filing suit and crying 'character assassination,' silence those who hold divergent views, no matter how adverse those views may be to plaintiffs' interests. Scientific controversies must be settled by the methods of science rather than by the methods of litigation."
Singh rolled up bills of 200,000 pounds ($320,000) fighting the association through the courts.
While welcoming the draft bill, "there is still work to be done to ensure that we end up with a law that enables us all to focus on the question 'is it true?' rather than 'will they sue?'" said Tracey Brown, managing director of Sense About Science.
Jonathan Heawood, director of the writers' group English PEN, said current law allows corporations to silence their critics.
"Whilst we're delighted that the government has delivered a wholesale draft bill, for the first time in a generation, it's essential that this opportunity delivers real reform that protects free speech for writers, publishers and the citizen critic," said Heawood.