It is hardly an exaggeration to suggest that the past two years have seen a media frenzy over the libel tourism debate on both sides of the Atlantic. This relatively recent interest in international libel litigation, focusing on the UK in particular, was brought about by an increasing, but still relatively small, number of American personalities deciding to sue for defamation in the High Court in London.
The high profile of the individuals concerned, and the interest their claims have attracted, appears to have created a knee jerk panic in Britain and America, with the press fearing not just a run of potentially large damages awards, but also that the profile of these claims could possibly encourage other lesser known mortals to follow suit.
Although Americans have taken advantage of the UK’s more favourable libel laws for many decades, dating back to Liberace’s famous case and beyond, there has in recent times been a marked increase in the number of these claims for two very specific reasons.
Firstly, the rapid expansion of the internet has resulted in the extended publication internationally of established US newspapers and periodicals, many of which can and are readily downloaded from within the UK and other European jurisdictions. Indeed, with more and more US sitcoms being broadcast on international networks, it is no longer just movie and music stars who are household names, but also those who have become known as “B list celebrities” are now in a position to establish that they have an acknowledged reputation in the eyes of the British public. Another aspect, and the motivating factor behind this type of litigation, is the increasing importance of brand protection, with the credibility of the names of international personalities – their brands – being just as important to their commercial interests as to their professional achievements and personal reputation. Accordingly, a derogatory comment here or the reporting of an unsavoury incident there can have extremely serious financial repercussions for the individual concerned. The international personality is often left with no alternative but to seek vindication in the UK Courts in order to satisfy the moral and other requirements of commercial sponsors.
Normally the first port of call for a defamed celebrity will be his publicist or PR representative, who will undertake a damage limitation exercise in the form of direct contact with the newspaper concerned, which often can be persuaded to retract or amend a story, in return for an exclusive at some point in the future.
However, with the decline in sales of the traditional press, both tabloids and broadsheets, commercial competition between publications is more intense than ever. This has resulted in a media tendency towards taking greater risks and more urgency being attached to the timing for publication. This inevitably leads to mistakes, if not the publication of totally reckless allegations.
The second reason for the apparent increase in international libel litigation in the UK Courts is the prohibitive nature of the incredibly obstructive hurdles facing an individual wishing to bring an action in the United States. Not only do the First Amendment and other protections leave a Claimant with the extremely difficult, if not totally insurmountable, burden of having to prove actual and specific malice on the part of the publisher, but the introduction by States such as California of SLAPP motions, with the various cost risks involved, is discouraging to all but the most resolute and determined of litigants.
The California state legal system’s SLAPP motion, which is more specifically known as Section 425.16 of the Code of Civil Procedure was introduced to counter what the Californian Legislature determined to be “a disturbing increase in lawsuits brought primarily to chill the valid exercise of constitutional rights of freedom of speech and petition for the redress of grievances”. Such lawsuits had been dubbed “Strategic Lawsuits Against Public Participation” or SLAPPs.
Some commentators allege that the vast majority of SLAPP suits are unlikely to succeed on the merits and are brought in order to intimidate individuals from speaking out on a public issue. In cases involving the public interest, free speech or petition rights, the anti SLAPP statute gives a Defendant the opportunity to file a special motion to strike out a complaint and automatically freeze the discovery process unless the Plaintiff can demonstrate that he is likely to prevail in his underlying claim. As a result, the burden of proof on the Plaintiff is onerous, and, it could be said, unfair, as it effectively asks the Plaintiff to prove his case and establish the presence of actual malice, before he is permitted the usual access to background documentation that he may be aware will be essential to his case. On the other hand, if the Defendant succeeds in having the complaint struck out, the Plaintiff will be exposed to mandatory liability for legal costs, even before his case is “off the ground”.
Although a number of defamation Actions have been successfully prosecuted in the US, given that costs rarely follow the event in that jurisdiction, only in the most exceptional cases can a litigant hope to come out of what is an extremely intense process that is loaded in favour of the wealthy publisher financially unscathed. Accordingly, the UK Courts have tended to offer the best, if not the only, option for a US celebrity to secure vindication of their reputation, provided of course that he has a known reputation in Britain and that there has been publication within the jurisdiction. In reality it is only the international figure with a global reputation who will be well enough known to satisfy the former criteria, and this contributes to the media presentation of it as the UK’s more favourable libel laws benefitting only the rich and famous.
In the same way that many tabloids are reluctant to let the facts get in the way of a good story, the more respected broadsheets similarly are reluctant to let the actual statistics get in the way of a good campaign. The statistics speak for themselves in establishing that not only are international libel claims few in number, but equally that there are only a comparatively modest number of claims brought by the ordinary man on the street who remains, to all intents and purposes, fair game in the constant and competitive battle on the part of the press to increase their sales.
This is an edited extract from Chapter 3 of Paul Tweed’s new book, Privacy and Libel Law: The Clash with Press Freedom, published by Bloomsbury in May 2012.