Britain, Fix Your Libel Laws!

Legal observers have noted for some time that the laws governing defamation in the United Kingdom are far more plaintiff-friendly than similar laws in the U.S. In the U.S., anyone claiming they were libeled has to prove that the allegedly libelous statements were false. But in the U.K., the burden of proof is reversed: the defendant in a libel suit has to prove that the statements they made were true. This creates a serious hazard to free speech: rich, litigious individuals can file lawsuits and win just by prolonging the court battle until the other side runs out of money to fight, at which point they instantly lose – and then must pay damages and court costs.

This is precisely the strategy that thin-skinned billionaires and powerful business interests, many of them not even based in the U.K., have been using to shut down anyone who criticizes them. It’s become so common, it’s acquired a name: “libel tourism”. Most infamously, the Saudi businessman Khalid bin Mahfouz sued journalist Rachel Ehrenfeld in the U.K. courts for her book Funding Evil, which alleged that bin Mahfouz financially supported Muslim terrorist groups – this even though Ehrenfeld doesn’t live in the U.K. and her book wasn’t published there. Another example is the case of Simon Singh, a science journalist who wrote an editorial saying that there was no evidence for the effectiveness of chiropractic – and was promptly sued by the British Chiropractic Association. That case is still ongoing and has already cost Singh tens of thousands of dollars and countless hours defending himself.

And now, the U.K.’s libel laws are being invoked yet again in what promises to be their most outrageous and absurd application so far. Atheists might have guessed that this was coming:

A Saudi Arabian lawyer has threatened to use British courts to overturn a Danish free speech ruling by bringing a defamation case over cartoons of the Prophet Mohammed that depicted Islam’s founder as a terrorist.

Faisal Yamani, a Jeddah based lawyer, is planning to take a case to London’s libel courts on behalf of over 90,000 descendants of Mohammed who have claimed that the drawings have defamed them and the Islamic faith.

…Mr Yamani demanded last year that 11 Danish newspapers remove all cartoon images of Mohammed from their websites and issue front page apologies along with promises that the images would never be printed again.

Yes, it’s those Danish cartoons of Mohammed again. Five years after they were first published, the Muslim world just can’t move on, and is still demanding that someone, anyone, must be made to pay for their hurt feelings. From angry mobs in the streets and ax attacks on cartoonists, to libel lawsuits and pushing defamation resolutions at the U.N., it’s clear there’s nothing they won’t try to censor and intimidate anyone who criticizes them in any way at all.

But even under the U.K.’s plaintiff-friendly defamation laws, this suit looks even less meritorious than its predecessors. First of all, on what basis does anyone assert the right to sue on Mohammed’s behalf? Can a many-centuries-dead person be libeled? And what “factual statement” was made by these drawings that the plaintiffs claim to be defamatory?

But whatever legal issues are raised by this lawsuit, the question of its merit is irrelevant. Like all libel tourism, its purpose isn’t to prevail on the merits, but to intimidate and harass media organizations with protracted, expensive litigation and the threat of a catastrophic judgment, thus chilling their speech and making them afraid to offend any deep-pocketed individual. Whether it’s pseudoscience groups protecting their cash cow from scientists’ criticism or the perpetually aggrieved Muslim mob and their petulant demand that no one be allowed to express any opinion they disapprove of, the strategy is the same, and the result is too often the same as well.

America has this problem too of course, with so-called SLAPP lawsuits – but in our system, with the burden of proof the right way round, it’s much more difficult for cults and corporations to succeed in silencing their critics. Britain’s libel laws, on the other hand, are far too easily abused by those who flee from criticism and avoid open debate – but eagerly use thuggery and coercion to shut down their opposition if given the chance.

Fortunately, the U.K. has seen the rise of a broad coalition seeking to overhaul the libel tourism laws and put the country back on a more rational footing. But too much damage has already been done, and more is being done, so reform can’t come soon enough. If you live in Great Britain, contact your MP and tell them to support this effort! We need to take action before any more scientists, atheists or freethinkers are silenced by the allies of corruption, censorship and superstition.

About Adam Lee

Adam Lee is an atheist writer and speaker living in New York City. His new novel, Broken Ring, is available in paperback and e-book. Read his full bio, or follow him on Twitter.

  • http://onewomansopinion.grooving2music.com Toni

    Regardless of the outcome, this trial will incite violence in Britain, Denmark, around the world. People will die because of the cowardice and insecurity of religious zealots. That in itself is nothing new, but when the courts enable it, that’s tragic.

  • Ritchie

    First of all, on what basis does anyone assert the right to sue on Mohammed’s behalf? Can a many-centuries-dead person be libeled?

    No, under British law you can’t libel the dead. I can only presume they would claim it is all Muslims that were being libeled.

    But I’m less clear whether the American way is the better way round. If I announce a defamatory statement in the media (‘Ebonmuse molested my Prophet Mohammed teddy bear!’) and you sue me, is it more logical for me to have to prove that you did, or for you to prove that you did not?

    Surely, if the latter is the case, it is an impossible task? How can you prove that you did NOT do something?

    Surely it makes more sense for me to have to prove that you did? Even if this way round is (more???) open to abuse…?

  • http://www.whyihatejesus.blogspot.com/ OMGF

    Ritchie,
    What you described is the US system. It is up to the plaintiff to prove their case in the US, whereas it sounds like the defendant must prove their case in the UK, if Ebon’s description is correct.

  • Ritchie

    OMGF

    But in my silly example, I would be the defendant and Ebonmuse the plaintif. So if the burden of proof is on Ebon, doesn’t that mean he has to prove he DIDN’T molest my teddy?

    Surely it makes more sense for me, as the defendant, to have to show that he did…?

  • http://steve.mikexstudios.com themann1086

    Defendant is innocent until proven guilty. Ebon’s task would be to show that you knew what you were saying was false. If you can show you thought it was true, it’s not libel.

  • http://www.whyihatejesus.blogspot.com/ OMGF

    If Ebon wanted to show libel, he would have to show that your statements were false and defamatory. He could make the case that you were unable to provide evidence for your statement and therefore were reckless in making the statements you did and hurt his character.

    Libel is very hard to prove though.

  • http://www.whyihatejesus.blogspot.com/ OMGF

    Ritchie,
    Thinking about it more, I do see what you are getting at…

    That said, I think that the idea of what is open to abuse leads me back to the US system. In the UK system, what is open to abuse is that innocent people will be found guilty of libel. In the US system, the abuse comes from being unable to successfully sue a guilty person and them going free. Would we rather have innocents found guilty in order to make sure all the guilty are found or guilty people being found innocent in order to protect the truly innocent?

  • Ritchie

    OMGF,

    Yes, I think that’s a fair summary. It seems to me that it would be very hard to prosecute someone for libel in the US, whereas in the UK the reverse is true.

    Though I would also stipulate that in the UK we have a certain time threshold to retract – ie, Ebon would have to officially complain to me and I would have time to retract the statement and apologise, and Ebon wouldn’t be able to touch me legally. He could only sue if I failed to comply with this. I can’t remember what that time period is called or how long it is though…

  • http://stevebowen58.blogspot.com Steve Bowen

    OMGF
    Just to clarify then, under the U.S system, in order to successfully sue, the plaintiff would have to prove a) that the statement was false and b) that the defendent knew the statement was false?

  • Pierre

    What would be awesome is if we had judges that could weed through the bull crap

  • http://piepalace.ca/blog Erigami

    Would we rather have innocents found guilty in order to make sure all the guilty are found or guilty people being found innocent in order to protect the truly innocent?

    Well said. Needless to say, we should protect the innocent and run the risk of some of the guilty going free.

  • http://www.whyihatejesus.blogspot.com/ OMGF

    Steve,
    IANAL, so I’m not sure if you actually have to show that the defendant knew the statement was false.

  • CybrgnX

    If I understand the cartoon silliness, its not only they drew an image of Mo but made fun of him. Now what does Mo look like if there are no images of him???
    Also the drawing could be anyone, and some thought it was Mo. Taken to its logical conclusion, if I do…. :-} … then say Mo has a crooked smile.
    Then the three symbols : and – and } makes all islam angry and humiliated. This doesn’t even take into consideration that a drawing (sympathetic magic) is real.
    Unfortunately I would never be on the jury of one of these trials because I would be able to stop laughing at the lawyers during jury select.

  • James

    I’ve been reading this blog for some time, but this is the first time I’ve commented, as this is an issue which is important for the future of what can be read in the UK and I’m delighted that Ebonmuse has brought attention to what is seemingly an obscure topic.

    In principle, the writer of a blog such as this could be sued under UK laws by someone upset by one of the articles which they can tenuously claim has defamed them, no matter the truth of what is written. What would be the solution? Well, many non-UK bloggers could stop allowing their blog to be read in the UK rather than facing potentially expensive lawsuits, cutting my country off from really important studies and news. This already looks like happening with some non-UK newspapers and magazines soon.

    There is a good discussion of this issue here (in the first half):
    http://www.guardian.co.uk/science/blog/audio/2010/mar/08/science-weekly-podcast-libel-laws

    It looks like Parliament is gradually starting to take note – my MP gave a positive reply when I wrote to her, and I have heard of a few other promising responses – but it needs to become more of an issue as it is generally being ignored by the mainstream media. Everyone, including those not in the UK can sign the petition here:
    http://www.libelreform.org/

    And, as Ebonmuse says, it would be great if those in the UK also write to their MP, and, with an election coming up shortly, other candidates standing in their constituency.

  • http://www.superhappyjen.blogspot.com SuperHappyJen

    In Canada, as far as I understand it, the burden of proof is also on the defendent. Forces journalists to keep very detailed notes and tape-recordings. I don’t know if I like either method. In the US, someone can publish anything they want about me as long as it’s impossible to prove (ie “Ebonmuse molests teddybears when noone is looking”) and in the UK (and Canada), as Ebonmuse pointed out, it could theoretically be fairly easy for a corporation to silence criticism. You know what, I like our system better. If I read or watch something in the media, I want to know that it’s actually true. As long as what is said about corporations and cults is true, provable, noone needs to be worried about losing lawsuits.

  • http://infophilia.blogspot.com Infophile

    OMGF said:

    IANAL, so I’m not sure if you actually have to show that the defendant knew the statement was false.

    IA (also) NAL, but I’m pretty sure the standard is that they either knew it was false, or they said it with reckless disregard for the truth – that is, they didn’t know whether it was true, and said it without bothering to find out.

    There’s an exception to the “reckless” case in the chance that the statement is in fact true. Even if they said it without bothering to find out if it’s true, if they can show it’s true at trial, they’re in the clear.

  • Archimedez

    “Faisal Yamani, a Jeddah based lawyer, is planning to take a case to London’s libel courts on behalf of over 90,000 descendants of Mohammed who have claimed that the drawings have defamed them and the Islamic faith.”

    The main obstacle here for Faisal Yamani, I think, is that he would be suing Danes in Denmark. To use the U.K. laws, I imagine he’d have to go through the E.U. Even then, I have my doubts that this is even feasible legally. (I’m no legal expert; anyone who knows more about this, please do chime in).

    Politically, Yamani’s proposed move is double-edged. On the one hand, the mere announcement of his threat to sue is enough to have an inhibiting effect on people, at least those in the U.K. or possibly in the E.U. On the other hand, were he to actually pursue this, this would lead to reactance and resistance from the non-Muslim publics in the U.K. and Europe generally, e.g., see the effects of the attempts to ban Geert Wilders from entering the U.K. in 2009, and the prosecution of Wilders in the Netherlands, all of which only served to boost his popularity among people that might not have otherwise voted for him.

    Muslims who want sharia, such as Yamani, have to deal with the double-edged scenario that I mentioned above. On the one hand, they can’t just engage in apologetics about Islam; they have to actively pursue the enforcement of Islamic blasphemy laws in non-Muslim countries in whichever ways they can. This is the one aspect of sharia that they can’t afford to keep on the shelf until a later time. (That is, they can’t afford to allow people to freely criticize Islam in public). On the other hand, by pursuing it they are revealing their agenda to the same people they are trying to sweet-talk with Islam apologetics (e.g., Islam is modern, respects free speech, doesn’t include harsh or antiquated forms of sharia).

  • Archimedez

    Well, this is ironic, to say the least…I just searched the official website of the Saudi Kingdom (al-islam.com), and looked to see what they had in regards to portrayals of Muhammad as a terrorist, which as many of us now know can be found in the Quran and Hadith. Here’s a couple of examples of what they publish, and which they undoubtedly approve:

    Quran 8:60 [bolding added]
    “Against them make ready your strength to the utmost of your power, including steeds of war, to strike terror into (the hearts of) the enemies, of Allah and your enemies, and others besides, whom ye may not know, but whom Allah doth know. Whatever ye shall spend in the Cause of Allah, shall be repaid unto you, and ye shall not be treated unjustly.”

    Hadith:
    “Abu Hurairah, may Allah be pleased with him, reported:
    The Messenger of Allah (may peace be upon him) said: I have been given superiority over the other prophets in six respects: I have been given words which are concise but comprehensive in meaning; I have gained victory by terror (in the hearts of enemies): spoils have been made lawful to me; the earth has been made for me clean and a place of worship; I have been sent to all mankind; and the line of prophets is closed with me.”
    Hadith number in Sahih Muslim [Arabic only]: 812

    So will Yamani now be suing his own government for publishing these and many other such statements?

  • http://www.daylightatheism.org Ebonmuse

    In the US, someone can publish anything they want about me as long as it’s impossible to prove (ie “Ebonmuse molests teddybears when noone is looking”)…

    I’m not a lawyer, but I don’t think this is quite correct. Ritchie’s point is well-taken that a plaintiff could never prove the falsity of a defamatory statement if it’s phrased as above, but I doubt getting away with libel is as easy as that. I believe the law is that, if you say that someone is guilty of a criminal act – say, violating the Teddybear Chastity Protection Act of 1861 – that statement is presumed to be false if they haven’t actually been convicted of it (hence why newspapers always use the word “alleged” when reporting on arrests and the like). I believe there are some other exceptions to this that I’m not well-versed in, so if any DA readers are attorneys, their input would be most appreciated.

    You know what, I like our system better. If I read or watch something in the media, I want to know that it’s actually true.

    Well, to be fair, even British and Canadian laws don’t provide for that. They just assure you that no one has sued over it, which is a different animal altogether.

  • Alex Weaver

    IANAL, so I’m not sure if you actually have to show that the defendant knew the statement was false.

    You have to show either that the defendant knew the statement was false, or that the defendant made/published it with reckless disregard for whether it was true or false. If the plaintiff is a “public figure” you additionally have to show malicious intent – IE, that it was published to try and make them look bad.

  • Alex Weaver

    As long as what is said about corporations and cults is true, provable, noone needs to be worried about losing lawsuits.

    Since you’re rich enough to be able to hire the same quality and number of lawyers, for as long, as the average megacorporation, it may not be much of an issue to YOU…

  • Valhar2000

    As long as what is said about corporations and cults is true, provable, noone needs to be worried about losing lawsuits.

    As Ebon says, UK laws do not provide for this. What they do provide for is the ability for a rich plaintiff to prolong the defamation trial for as long as their funds will last, until the defendant is forced to cancel their defence for lack of money, at which point the defendant automatically looses.

    So what is said about corporations is true as long as the corporations in question do not decide to contest it; if they do, what is published gets retracted and something “cheaper” is reported instead. That is why Simon Singh has had to spends tens of thousands of dollars defending himself for saying what every minimally science-literate person knows is true. Do you think it is a good idea for people to have to pay a normal person’s yearly salary in court costs for stating the scientific consensus in public?

    Surely you are not going to tell me that the garbage the British Chiropractic Association says must be true because “they wouldn’t let them say it otherwise”? If you do believe this, I happen to own a bridge in Brooklin that I am willing to sell you at a very good price, simply out of the goodness of my heart.

  • http://www.punkassblog.com Antigone

    Actually, there are three things you have to prove in an American libel case. If I say “Ebon molests Teddy Bears*” and Ebon sues me for libel he would have to prove (as the prosecutor) that a)that it was false b) that I had a reasonable expectation or reasonable knowledge that it was false and c) that it caused significant damage to Ebon’s reputation.

    Now, in the case of Teddy-bear molesting, he merely needs to assert that it is false, and it is pretty much accepted as false with maybe some states going so far as to having a few character witnesses.** It then because the defendants responsibility to prove the claim of Teddy-bear molesting accuracy as a defense.

    Now, the prosecutor still has the heavier bar to leap as a matter of the American court system, since he has to prove by preponderance of the evidence that he was libeled. But, it is set up this way as a protection of freedom of speech. The bar goes slightly higher if it’s a journalist who writes something libelous for the second law (which is why bloggers often try to get protection as journalists) but that’s starting to go a little bit off the “Ebon molesting Teddy Bears” path.

    *Sorry, this is just what stuck.
    ** I am not a legal scholar, I have not passed the bar, please consult an actual attorney if you find yourself in a legal situation and libel laws vary by state (particularly Louisianan) this is just the broad strokes.

  • http://bridgingschisms.org Eshu

    Thanks for bringing people’s attention to this. I went to the gig on Sunday night and it was both informative and entertaining. There is now significant momentum behind this campaign and I think it will achieve more, the Home Secretary has already acted to help lower the cost of libel cases at the campaign’s request (can’t remember the details), but it’s still way out of proportion.

    Simon Singh, a science journalist who wrote an editorial saying that there was no evidence for the effectiveness of chiropractic

    To be specific, he said that there was no evidence in the often-claimed cases of treating infant colic and deafness. He said there was “some” evidence for treating back issues, but that it wasn’t overwhelming either.

  • konrad_arflane

    What I don’t understand is why the British courts will even take a case like this. Never mind whether or not the cartoons would be considered libel under UK law, the defendants are incorporated in Denmark, and published the allegedly libellous material in Denmark. No part of the alleged crime took place in the UK. Why do the British courts feel they even have jurisdiction in such cases?

    For that matter, what happens if the Danish newspapers were to lose this case? How are the British authorities going to enforce whatever judgment is rendered? As long as the few handfuls of editors responsible for the publication of the cartoons refrain from traveling to the UK, what hope do the plaintiffs have of seeing “justice” done?

  • http://stevebowen58.blogspot.com Steve Bowen

    a little good news for easter.

  • http://bridgingschisms.org Eshu
  • http://www.daylightatheism.org Ebonmuse

    That’s great news indeed! Now I just hope Singh turns around and takes the BCA for court costs. It would be the least they could possibly be punished in return for the years of harassment and aggravation they’ve caused him.

  • http://steve.mikexstudios.com themann1086

    Ebon,

    I read on another blog that Singh is suing BCA for court costs. No link, sorry.