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October 12, 2006
British Revamp Defamation Laws To Protect Free Speech

Americans have grown used to a tort system that zealously protects free speech involving criticism and reporting involving public figures. In the US, any public figure that sues for defamation, libel, or slander has the burden of proof to show that the speech intentionally and maliciously defamed and damaged the plaintiff. However, even in other Western nations, the protection on free speech varies widely, and has been loosest in Britain. The UK requires defendants to prove their published allegations in court or to pay damages. One of the most famous examples of this dynamic is George Galloway, who won a judgment against the London Telegraph for their reporting on his connections to the Oil-For-Food program.

That kind of award may soon be in the past. The Law Lords have overturned a judgment against the Wall Street Journal Europe and stated categorically that the law should protect journalism on stories of public interest:

Britain’s highest court ruled Wednesday for the first time that journalists have the right to publish allegations about public figures, as long as their reporting is responsible and in the public interest.

The ruling, a unanimous judgment by the Law Lords, is a huge shift in British law and significantly improves journalists’ chances of winning libel cases in a court system that until now has been stacked against them.

English judges have traditionally been so sympathetic to libel plaintiffs that many people from abroad have sued in English courts — even if the publications in question have tiny circulations here — because they have had a much better chance of winning here than at home.

Newspaper editors said the decision, in the case of Jameel v. Wall Street Journal Europe, would free them to pursue stories vigorously without constant fear of lawsuits.

“This will lead to a greater robustness and willingness to tackle serious stories, which is what the judges said they wanted,” said Alan Rusbridger, editor of The Guardian. Until now, he said in an interview, newspapers have had to police themselves to the point where “stories weren’t getting in the paper or were being neutered by clever lawyers who knew how to play the game.”

This decision is apparently final, and it sets a significant precedent. Britain now will not attract so many of these lawsuits from abroad, an abusive tactic under any circumstances. Technically, as long as a publication had a measureable readership in Britain, plaintiffs could bring suit against writers and publishers regardless of whether or not they lived in the UK. It forced defendants to spend a lot of money just to answer the charges in court, which meant that the accused had a big financial incentive to offer settlements -- which meant that public figures had a big incentive to use those threats for litigatory blackmail.

The decision should be applauded by supporters of free speech. Public figures have to be open for criticism and investigative journalism in order to ensure that any corruption or criminality gets exposed. While we often complain about the motivations and the execution of these efforts -- which seem suspiciously more enthusiastic when a conservative is the subject -- we want journalists to report freely. We'd just prefer that they do it fairly.

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Posted by Ed Morrissey at October 12, 2006 5:05 AM

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