My remarks at the UCL Institute for Advanced Studies round-table on ‘Lies and the Law’

Last week I posted a quote from Dr Alex Mills of University College London, on Facebook’s woefully inadequate Terms & Conditions that related to defamation. That was drawn from a panel discussion I participated in on 22 March 2018 hosted by UCL’s Institute of Advanced Studies, entitled ‘Defamation – A Roundtable on Lies and the Law‘.

Here again is the audio of the panel discussion, and for for completeness I have pasted my remarks below too. The other participants were by Dr Alex Mills (UCL Laws), Prof Rachael Mulheron (Queen Mary Law) and Dr Judith Townend (Sussex Law). The discussion was chaired by Harry Eccles-Williams, Associate at Mischon de Reya.

Remarks

Let me talk briefly about English PEN which might give some context for what I’m doing here, because I’m not a lawyer. In fact, isn’t there an old statute that says if you share a panel with a couple of lawyers then you have to make the joke about two lawyers and three opinions? But what I’ve been wondering is if there are four lawyers, is that five opinions, or is exponential? Big questions. Anyway, that statutory duty is done.

English PEN, we are a writers association, we were founded here in London in 1921 and we are the founding centre of a worldwide network of PEN centres. And our PEN charter says that we promote literature across frontiers, and we seek to break down the barriers to literature and freedom of expression.

So language is a barrier to literature. What if your favourite novel is in a language you don’t understand?  So we promote multilingualism and we have an Arts Council funded translation programme, bringing the best of world literature into the English language. A couple of books we’ve supported have just been nominated for the Man Booker International, I might tell you about them later.

Literacy is also a barrier to literature. You need to be able to read and write to excercise your freedom of expression! So we promote literacy and we run  outreach workshops that gives people, in the programmes we run, who are new to this country, and maybe new to the English language, the chance to try creative writing. Creating a platform for new and diverse voices.

We also run literary events as well, putting authors in front of audiences. If any of you are goingto the London Book Fair then we have a big  Literary Salon there, a series of author talks.

But the thing that we are probably best known for is our free speech campaigns. Our work on the legal barriers to expression. PEN actually has observer status at the UN, we campaign for writers all over the world: many are in prison or on trial. Many are in exile. Many have been attacked. And too many are dead, because they have murdered by rogue states or organised crime.

Part of our work has to be in the UK too, because the UK needs to set an international example. Many countries, particularly in the Commonwealth, have laws that are based on the British system, and many retain and use those laws that we in the UK have got rid of. I think particularly here of the Criminal Libel laws which we finally abolished in the Coroners & Justice Act 2009 s.73, which was when the Libel Reform Campaign was started.

A common objection from countries that do violate free speech rights is that the UK does it too. That is not generally true!  But its important that the UK leads the way on free speech, we believe.

And, of course, keeping our speech as free as possible is a virtue in itself. It’s what keeps democracy strong. And I think many of the perceived threats to democracy here in the UK and the USA have to do with expression and speech and how we conduct our discourse.

And you mentioned the Facebook issue in the news this week, and of course the problem of ‘fake news’, which I assume is one of the inspirations for this seminar series.

Anyone can be a member of PEN, if you support our mission. But we have traditionally drawn our support from the publishing industry. Authors, poets, journalists, editors, literary agents. They support us because of the work we do. standing in solidarity with writers around the world.

The Libel Reform Campaign was unique in that it was something that directly affected our members. So we heard from publishers in our network, both big and small, that they were really affected by the libel laws.

And we also heard about people around the world being effected by the system in England & Wales. This phenomenon of libel tourism that you mentioned, which is when someone rich comes to London to sue; and there corollary is ‘libel kidnap’ which is defendants being dragged to London to defend a case, which what we were concerned about. This was a real phenomenon:

  • There was the celebrated case that Harry and I were talking about before the start, between Sheikh Khalid Bin Mahfouz, who was Saudi, and Rachel Ehrenfeld, who was American. She was sued over a book published in only America, but [was sued] in the UK.
  • There was Kaupthing (Icelandic) suing Ekstra Bladet, from Denmark, but in the UK courts
  • Sheikh Rashid Ghannouchi from Tunisa suing Al Arabiya from Dubai
  • Rinat Akhmetov from Ukraine suing the Kyiv Post for an article written in Ukrainian and published in Ukraine!

So these cases did happen, and we simply felt that it was odd, to say the least, that this was happening in London.

It was also the case that when people wrote about human rights violations, they were sued by the violators.

  • Human Rights Watch had to defend a report against a genociaire from Rwanda
  • Global Witness had multiple threats made by loggers and diamond mining companies
  • And Little, Brown, the publisher owned by Hachette, spent two years defending a book called Slave by Mende Nazer, about her experience of being trafficked and kept in modern slavery

In all these case, not one word of the original publication was changed or withdrawn. In all three cases the defendant prevailed. Nevertheless it was still a problem because of the cost and the time defending the case. If you are spending money defending a libel case then you are not spending it on other human rights campaigns. If you are a publisher spending money on libel, then you’re not spending it on more books. And the popular Booker-winning book authors will always get a book deal, so who is it who is missing out in those circumstances? Well, its the diverse voices, the new voices, the minority voices, the risky voices, that the publishers decide they can’t afford to take a punt on.

So that’s why we launched that campaign. A real drive and ask from our members and our constituency.

The campaign I suppose we can say it was successful because we got a Defamation Act and it does have measures that we asked for, in some form. There is certainly not a one-to-one relationship between the first ten recommendations we made in the report you mentioned. And in fact we don;t quite stand by everything in that report, eight year later. But there were measures that we supported, approved of, and asked for.

Clearly there is lot to be said about section 1 as Rachel says. And section 4, which five years on has nver had a test case.

I have a lot to say about section 5 even if no-one else has! May be you and I [Harry] can geek out on that? This is the internet thing that you mentioned. I won’t talk about that for now.

I just want to talk about nature of the campaign.

The first thing to mention is that there was a consensus from all the political parties that there should some kind of update. All the parties had reform in their 2010 manifestos, and the parliamentary process was quite collegiate.

I think Lord Tom McNally who led on the bill from the House of Lords, a Ministry of Justice minister and Liberl Democrat, he should take the bulk of the credit for that. But Rob Flello and Sadiq Khan on the Labour side, and Baroness Diane Hayter. And also Lord Brian Mahwinney who chaired the joint committee, the scrutiny committee—they all worked hard to make it collaborative. I sat in the committee sessions in the commons and Lords and I think that is how legislation should be conducted. Parliamentarians really getting behind the points, and quite detailed discussion over points of law.

I published something right after the bill was enacted. Its called The Defamation Act 2013: Complete and Unabridged. It is, in book form, every piece of parliamentary paper, all the Hansard, all the amendments, all the versions of the bill. And it runs to two volumes, a couple of thousand pages. I wanted to have it here to show you how much parliamenty [time] went into it. There are a couple of mischievous lawyers who say that there was a rush to legislation and it wasn’t thought through! And those books, I think, prove otherwise.

So that consensus, that collegiate aspect, did not come from the media or even the publishing industry that was demanding change. Of course the media were always demanding change! That was a great asset to the campaign was that we did get editorials in the Times and the Guardian and the Telegraph and the rest, asking for reform, of course we did. But in my opinion what flipped the politicians mind was the scientists and the doctors who were complaining about being sued.

The most egregious example of this Peter Wilmshurst, a very eminent cardiologist, whowas sued by a health company called NMT Medical over a heart implant. Peter had conducted the clinical trials on this heart implant, and at a conference in Canada he said it that it didn’t work, and he got sued for it. And over the course, of that case, which he fought and ultimately won at great personal distress and cost to himself, it transpired that at least two other cardiologists had been threatened into silence by the same company over the same issue. That was over a heart implant that didn’t work.

One reason why the thalidomide scandal took so long to be exposed by the Times in the 80s was the fears over being sued by the pharmaceutical companies. That’s what flicked a switch in the minds of the politicians I think.

The reform as you may know wasn’t extended to Northern Ireland or Scotland, though Scotland took on a couple of aspects, the peer review aspect. But in both cases the respective Law Commissions did studies that ended up with recommendations for reform and a draft bill. The Northern Ireland Law Commission then got abolished and the Stormont Assembly isn’t sitting, so there is stasis there.

But tn fact just this week, my colleagues at Scottish PEN, including Iain Rankin, Christopher Brookmyre and a hundred other authors have just written to the minister asking that now reform there be brought forward.

So that’s where we are with the campaign.

I just want to say some things about the broad nature of the libel law that I observed as a non-lawyer.

The first is that the law is not founded and created all those centuries ago, with any concern for the truth!  When it was conceived of as an offence, there was no defence of truth in the law. It was created to protect the reputations of powerful people. In fact, early in my research into the this… showed that during the time of the star chamber, if what you said was true, that meant you were punished more, because obviously a true statement is worse and lowers your reputation more than something that is ultimately shown to be false.

And I think we also know that the law as we know it today began to be codified around the same time as they were trying to abolish duels in the park. “I have been defamed, sir! I demand satisfaction!” And certainly the single publication rule, or the multiple publication rule as it was – bizarre – makes perfect sense in an age when, say, Lord Sharp has written a poisoned pen letter to Lady Townend, and if I write two then its obviously worse thanwriting one. Or handing out handbills on the street that I’ve cranked out with my press.

On final thing on this: in Scots law there is no requirement that you make your defamatory imputation to a third party. A legal historian in one of the round-tables we held up there was telling us that was so the lords of the manor, the lairds, had some way of keeping their servants in order. If you talk back to your master, there was a mechanism there, it didn’t need to be witnessed by anyone else before you could be suppressed.

So when we are talking about lies and we are talking reputation, the law is [founded] not with a concern for the truth. And I think that is important. I think a lot of the issues we were trying to fix with the Defamation Act 2013 were gorunded in that presumption of a gentleman’s good reputation.

The other thing I wanted to say, which speaks to Rachel’s presentation particularly I think, is that wasn’t one piece of law that needed to correct and fix, there was no silver bullet.

What we felt was that there were lots of aspects to the law: the presumption of harm; the inflexible definition of truth; After the Event Insurance Premiums and Confiditional Fee Agreements; case management decisions, related to the presumption of a jury, and when you determine meaning; and also lawyers fees; and the fact that some of the defences were very complex because they have been developed over many years; and the trivial claims, the possibilty you could to go after secondary publishers.

When these were tweaked, the effect was not to draw a nice bright line between virtuous, public interest free speech on the one hand; and righteous protection of reputation on the other. There is still a massive grey area. And the test cases we have seen like Cooke and Lachaux on section 1, and the old defences of Flood and Reynolds: there are huge grey areas, and those grey areas do still exist under the Defamation Act 2013, we can’t deny that. And I think they would still exist however we write the law. But I do think that the grey area has shifted a little towards free speech. And I do talk to lawyers who back that up.

So just to conclude my remarks, I will just observe and affirm that there is a right to reputation. PEN and the Libel Reform Campaign, we are not free speech extremists, and we do think there should be effective remedies for ordinary people being smeared by wealthy media companies. We actually did a project called the Alternative Libel Project, which was chaired by Stephen Sedley and Eric Barendt was that panel, that recommended increased use of mediation, to perhaps take some of the financial sting out of libel disputes. And if there were more of those kind of disputes, I don’t think we would knee jerk object to that.

So there is this right to reputation and its derived from Article 8 [ECHR]. But that’s human rights law. And so one thing we are looking at and talking about is whether companies should be taken out of the law, because they don’t have any feelings, and can’t have that psychological, visceral distress that individuals who are smeared undoubtedly experience. And so I do wonder whether we should really create some kind of bespoke law that relates to companies. Something we can talk about later too.


Image: ‘Zola aux outrages’ by Henry de Groux, 1898. The Dreyfus Affair was one of the most notorious defamations in history – you can hear all about it on the Land of Desire podcast series.

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