Libel tourism is the art of coming to England for the sole purpose of suing someone for defamation, even if neither party has anything to do with the country.

It became possible following one case in the early 20th century in which it was held that the English courts had jurisdiction in defamation over anything published or distributed in the country regardless of how many copies of the allegedly defamatory article were distributed there - it is the location of publication that decides jurisdiction in the English courts, not the locations of the parties. Nine percent of a millennium later, along comes blogging and a this argument is extrapolated to mean that if it's on the Internet, it's accessible in the UK and therefore published in Britain and thus the UK courts have jurisdiction.

The first reason why you might want to engage in a spot of libel tourism is that it is an open secret that English defamation law is gratuitously friendly to the claimant. For a start, defamation is one of the few civil actions in England and Wales that has a jury (this may surprise our colonial counterparts, but juries in the UK are generally only used in criminal trials). Secondly, for reasons best known to people not me, it is presumed that the defamatory statement is false; the claimant must only show that it would "lower the estimation of the plaintiff in the eyes of right thinking people." (Sim v. Stretch) Once they have done that, it is up to the defendant to put forward a defence and prove it on the balance of probabilities. This is quite a low hurdle for the claimant to jump and a rather high one for the defendant. And thirdly, the courts have been reluctant to push the public interest defence too far. As a result, it's a lot easier to get damages or an injunction in the UK for defamation than it is in other jurisdictions. While it is also true that there are defences for public interest, the reality is that it would be more expensive to defend a claim rather than to roll over, thus meaning it's more in the commercial interest to roll over and acquiesce. And since most mainstream media is driven by the demands of private shareholders, this is generally what happens.

And the second reason why one might sue in England for defamation largely stems from the first. Because of the claimant-friendliness of defamation law, the legal profession has responded accordingly. In London are a number of firms whose main business is described by Chambers & Partners, quite decorously, as "reputation management." These firms include Carter Ruck, which will be familiar to readers of Private Eye as "Britain's most ridiculous libel lawyers." Their founder, one Peter Carter-Ruck, was among the first solicitors to offer conditional fee agreements ("no win, no fee") for defamation actions back in the mid 1980s. As such, defamation, being a very technical and complex cause of action, ceased to be the domain of wealthy folks defending their honour and became more accessible to the public at large. Other firms that practice in this area include Schillings, which became notable in libel when they started to cultivate a celebrity clientele following their acting for Naomi Campbell against the Daily Mirror in 1998 (ironically, a privacy action, but the clientele remains the same.) It is also exceptionally profitable. Top litigation practitioners in the capital routinely bill £500.00 per hour for their services, and given the amount of things you can bill for in litigation - okay, it's not really as bad as The Firm in which if you think about a client in the shower you bill it, but one partner at Carter Ruck billed for watching an item on Channel 4 News that was related to his client's case and called it research (source: a past issue of Private Eye, I forget which one) - it is all but a licence to print money, and to be fair, these celebrities and dodgy foreign business magnates can afford it.

The upshot of this is that you have to be careful what you print, or you may find yourself faced with a sharply worded letter signed by a bloke in an office over Fleet Street. And this isn't just the realm of vain celebrities who get annoyed when you question their respectability. That the despicable Julie Burchill got sued by the equally despicable Stephen Berkoff for calling him "Frankenstein's Monster" is bad enough. This is also the realm of seriously unsavoury characters trying to quell much-needed investigation and criticism, such as the Saudi banker Khalid bin Mahfouz. This worthy is a friend of the Saudi royals and also of the bin Laden clan, who, aside from producing the closest thing the world has to a Bond villain, also built most of the Middle East. He also is a friend of what in a less enlightened age would be described as "mad mullahs" and has been suspected of using his bank as a front for funnelling funds to al-Qa'eda cells in unstable regimes in diverse parts of the Islamic world. When a New York-based investigative journalist named Rachel Ehrenfeld wrote a book on the disquieting relations between Middle Eastern big business, often working in partnership with major Western businesses, and shady connections between said businesses and terrorist groups, including bin Mahfouz's involvement in this (and in the collapse of BCCI), she was hit with a lawsuit and had to settle for all copies of her book being destroyed and for damages. Indeed, the litigiousness of such people was one of the factors that led many UK publishers to turn down Craig Unger's book "House of Bush, House of Saud" which documented the relationship between Texan and Saudi oil barons and how American investors and businessmen were indirectly funding terrorism.

Even more disturbingly, the easily offended and those with unpleasantness to hide have not only been going after the publishers. While it makes sound commercial sense in defamation law to go after the publishers, as they have the money and can pay damages and costs, the wheels of justice do grind mighty slow, and when someone with a Wordpress account has a video of you importuning yourself with a Prawn, you understandably want to get that off the web before your cries of "I did not have sex with that extraterrestrial" start to jade folks. Injunctions are all well and good, but that picture's only going to pop up again and again, and there's always the risk of the common carrier argument being deployed by the service provider. As such, libel lawyers have started going after individual bloggers, writing threatening letters telling them to get this video of their client cocking a crustacean off, or they'll be sued for £lotsofmoney. A particularly loathsome example of this is when Gillian McKeith, the Grand High Poo Inspector herself, threatened to sic her law firm, Atkins, on a blogger who questioned her scientific knowledge, as well as on a real-life clinical nutritionist named John Garrow who wrote a deeply negative review of one of her books. Of course, it would not be advisable to actually institute proceedings against these bloggers as you would never get damages off them without massive Court wranglings, but it terrifies them into submission due to the prospect of having to go through the financial and emotional turmoil of litigation.

There have been some measures, thankfully, to curb the ravages of English libel law. The state of New York has shown itself rather reluctant to enforce UK defamation judgements in its jurisdiction. However, unless serious reform to the defamation laws in England and Wales is made, no rollback will be made of the threat to free speech presented by them. And as we have seen, this is more than about a blogger calling a model a "skank". This is also about the ability of serious investigative journalists to report on matters of serious public issue. I am not, of course, meaning that hacks should have the right to invade privacy willy-nilly - I should say that I supported Max Mosley in his privacy action against News International because it was a privacy action as opposed to a defamation action - and as such I would not adopt a solution akin to that in the States, where following the case of Sullivan v. New York Times if someone is a public figure it is automatically in the public interest to write about them. Rather I would push towards that, but not go to it. My personal view is that there should be a sea change in the way English law deals with defamation in that it should be up to the claimant to show that the defamatory statement was untrue, and also to show that it was not justified or in the public interest, rather than putting the defendant on the back foot from the start by making them justify everything they say. Granted, in reality this would need fine tuning but I'll leave that to my Lords on the bench.

On the other hand, it may well be that with the advent of Wikileaks, defamation law becomes a relic of a bygone era. Time will tell.

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