An earlier post on this blog dealt with the lecture given by former Law Lord, Lord Hoffmann, on “Libel Tourism”. He delivered a characteristically trenchant analysis of English libel law as it relates to “foreigners” in his Dame Ann Ebsworth Memorial Lecture on 1 February 2010. This is the lecture: Libel Tourism – LordHoffmann speech-01-02-2010. The lecture was considered on the interesting Media Pal@LSE blog here.
The lecture was discussed by John Kampfner, the Chief Executive of Index on Censorship, in an article in the Independent entitled “Let battle commence over privacy”. Mr Kampfner wrote about Lord Hoffmann’s speech in the following terms:
“The least reported but most bizarre intervention of the week came from
Lord Hoffman, a recently retired law lord of impeccable liberal credentials. In a lecture striking for its defensiveness and its Little Englander appeals, Hoffman took umbrage at a report last year by the UN Human Rights Committee that attacked English libel law as chilling free speech not just in the UK but around the world.
Hoffman suggested that Rachel Ehrenfeld, whose case shed light on libel tourism, had been in league with US neoconservatives. He dismissed the legislation that has been passed by a number of US states and is going through Congress as seeking to enshrine American legal hegemony. He saw no particular problem with the state of English libel law and insisted that the right for anyone to be able to use any country’s courts to sue for defamation should not be challenged”.
This elicited the following comment on the “Index on Censorship” website:
6 February, 2010 at 18:11
It’s a bit rich for John Kampfner to describe my arguments as “Little Englander” when I was at pains to demonstrate that we have much the same libel laws as the rest of the world, except the United States. It would be more accurate to describe the libel tourism campaign as “Big American”.”
John Kampfner responded on February 8, 2010 at 14:35
“Hello Lord Hoffman.
I’m not really sure where you get the impression that we’re somehow pushing an American agenda? In your speech, you claimed that the only people who had problems with our laws are Americans, ignoring the many examples in our report (www.libelreform.org).
Also, we are not campaigning solely against libel tourism. We’ve consistently pointed out that libel tourism is a symptom of the real problem. People come here to sue because of the favourable conditions for litigants. It is the combination of conditions that must be addressed.
Question: does something being American, or favoured by Americans, automatically make it wrong? Because that’s what you seem to imply, both in your speech and your comment here.
Lord Hoffmann did not reply. However, Mr Kampfner’s post produced one further comment from a reader of “Index on Censorship”
The point is not that being American automatically makes something bad. it is that, in fact, the US law of libel and publication generally wholly unbalanced and inconsistent with internationally recognised human rights norms. For example, both the ECHR and the ICCPR require a balance between expression and reputation rights. In the US there is no such balance. There are, of course, arguments to be had about how the balancing should be done and where it should be placed in particular cases. What should not be in issue is that people whose reputation has been damaged by publication in the United Kingdom should have a right to have their reputation vindicated. The fact that they are foreign or that their reputation has also been damaged abroad should not make any difference. The kind of arbitrary limits to damages or UK publication proposed by Index on Censorship upset the balance in an arbitrary way”.
There is considerable force in these points. We believe that media law requires “balance” between the different rights in play and that the US model of effective immunity for all honest publication, however inaccurate, does not strike the balance in the right place.
Lord Hoffmann’s paper is a serious and thoughtful contribution to the debate and we welcome further contributions in this area.