The report of the Libel Working Group was published last week. The Group itself was extraordinarily unbalanced, even by the standards of New Labour – its 17 members included 3 in house media lawyers, 4 representatives of groups campaigning for libel reform, 2 editors and a number of defendant solicitors, with just 3 claimant lawyers, an academic and a handful of neutrals. Nevertheless, its report is surprisingly balanced and moderate. It contains some interesting factual information about the libel actions issued in England in 2009 and the number which involve “tourism”. These figures are worth some careful consideration.
In 2009, there were 219 defamation cases issued in the High Court (down from 259 in 2008). Of those cases 34 or 8% were identified as having a “foreign connection” (based on the addresses of the parties given on the claim form).
There appear to have been no “pure libel tourism” cases – that is claims brought by foreign claimants against foreign defendants relying on the fortuitous publication of a few copies in England or on the internet.
There were 13 cases which involved claims by claimants located outside the EU against English based defendants (5% of the total number). It difficult to see how a foreigner who sues an English publisher can be described as a “libel tourist”. It seems likely that even adopting the (extreme) Index on Censorship/English PEN proposal that “at least 10 per cent of the total number of copies of the publication distributed have been circulated here” that all these actions would be permitted.
There were 5 cases in which the claimant was in England and at least one defendant was outside. Only 3 of these cases (or 1% of the total) involved claims by English claimants against foreign defendants.
The Group’s attention was drawn to another 52 cases – going back to the 1980s. These are set out in Annex C to the Report (which makes clear the obvious point that they have not been filtered). This list includes a number of cases which, by EU law, the claimants are entitled to issue in the United Kingdom and a number involving publications in England (eg cases “M” and “S” which related to books published in the UK, case “P” – a publication in the “Guardian”, case “ZH” – publication in the “News of the World”). A small number of cases do appear to involve very low levels of UK publication by individuals with limited contact with the jurisdiction by there is no evidence of this being a serious or persistent problem.
Although it is acknowledged that it is possible that some “libel tourism” cases may have been left out of the statistics due to the limitations of the method of assessment the overall position is clear: in 2009 there was no “libel tourism” problem. If there has been a problem over the past 20 years it has been at a very low level indeed.
This is about the most irresponsible piece of partisan reporting I’ve had the misfortune to read. The court could not provide information and as a result there is no clear definition of “libel tourism” what is clear is that there is a problem and many of the cases of pure libel tourism using the writers definition were ignored.
Three points in response:
1. The post relies on the best evidence available – that in the Libel Working Group report.
2. What is “libel tourism”? A good working definition might be claims brought in England by foreign claimants against foreign defendants where there is no substantial connection with the jurisdiction. There appear to have been none in 2009.
3. How is it clear that “there is a problem”? – There seem to be a small number of high profile cases, perhaps half a dozen cases in 10 years. These are all, it seems, in Appendix C to the report.
Overall the problem appears to be a minor one – it seems to us that the huge energy devoted to it is, in Lord Diplock’s phrase “using a steam hammer to crack a nut”