Monday, 15 November 2010

The Chilling Effect

"The right to freedom of expression is crucial in a democracy – information and ideas help to inform political debate and are essential to public accountability and transparency in government."
Source Liberty

M'lud, this type of thing should not be tolerated in a modern society
Yes, I am referring specifically to freedom of expression

The UK libel laws - immensely sympathetic to freedom of expression

'Chilling effect' definition: In constitutional law, the inhibition or discouragement of the legitimate exercise of a constitutional right, especially one protected by the First Amendment to the United States Constitution, by the potential or threatened prosecution under, or application of, a law or sanction.'(1)

The difficulties and cost of defending - or even settling - defamation claims in the United Kingdom are such that they create a serious chilling effect for the exercise of the right to freedom of expression. Faced with a threat to sue, newspapers or publishers will often abandon a story, not because it is untrue but to avoid the substantial burden of defending a lawsuit.(2)

Having little in common with the general political views of journalist Nick Cohen, this writer was surprised to be in complete agreement with him on the threat UK libel laws pose to investigative journalism and human rights activism:

For the record m'lud

Readers of this blogsite may not be aware that under UK libel law, the burden of proof falls on the defendant. What does this mean practically? The recent case of the libel action initiated against science writer Simon Singh by the British Chiropractic Association has highlighted this issue and drawn much support for reform of the UK libel laws. We shall return to the matter of reform of these laws later. For the accused in a libel action almost uniquely in law, guilt is presumed and innocence has to be proved. 'Sir! This statement most assuredly cuts against the grain of the very principles of our esteemed legal system and therefore must be wholly incorrect' I hear you gasp whilst wiping the Twinings superior Earl Grey from your tea-spattered beard and best Stayprest. This does of course seem to run in clear contradiction to the legal tenet of ei incumbit probatio qui dicit, non qui negat (roughly translated the burden of proof rests on who asserts, not on who denies) a central principle of English Common Law (and other legal systems based upon this model). Let us together, sponge ourselves down, and test the above thesis through the tried and tested mechanism of utilising an hypothetical example.

Classic methodology - the 'an hypothetical example'

Claimant W is an organisation - hereafter referred to as The Institution. Claimant W alleges that several of its most meritorious employees of high standing (MEHS) have been defamed let's say... in print or on a website. The medium of the alleged libel is largely irrelevant for the purposes of this hypothetical scenario. Because of what has been written about them, the MEHS claim they have suffered serious damage to their reputations. However, there is one fly in the ointment. For largely unknown reasons, none of the MEHS individually wish to actuate proceedings so they decide on pursuing a claim where The Institution acts on their behalf like like some sort of besuited lumbering umbrella with comprehensive BUPA cover. Having agreed their overall strategy, The Institution issues proceedings through the High Court of Justice for libel against an individual they decide is possibly to blame whom we shall hereafter refer to as 'Individual V', the accused, defendant or for the more cynical among you, the condemned. After providing a witness statement to the Court outlining their beliefs and suspicions, The Institution retires. Individual V then embarks upon the unenviable but necessary task of proving her innocence.

You're right... I'll go with pre-sat in leather

The judgement of Solomon - modern versus vintage leather

It's at this point, where you as a keen reader of this blog are taking full advantage of the womb-like comfort of your favourite wing-backed armchair. It's dark brown leather has seen many an arse and as a consequence retains that lovely worn-in patina whilst affectionately gripping both buttocks firmly. The fire is blazing away, framed elegantly by the cast-iron Victorian fire surround which has only recently received a coat of black fire grate polish. More importantly, your feet are warm for the first time today. All the while you're drawing deeply on the rich rough shag packed tightly into your newly purchased churchwarden as you slowly drift towards the light pacific slumber of a leaf-blown November afternoon. Yet despite this nostalgic inner retrenchment, you're slightly irritated as a student knocks on your office door and you jolt suddenly into abrupt consciousness. 'Sir! you're wasting my time with this liberal cobblers! The legal system will protect the innocent and the speakers of truth. There's nothing awry here!' You certainly do not see it as a potential 'three pipe problem'. Let us however don our best attire sans Hellequin , and jiggle the theoretical components of this hypothetical jigsaw in its box.

Thinking, cycling and smoking...
proving conclusively that chaps are perfectly
capable of multi-tasking
"I swear on the Holy Lible that etc..."

Back to our little moral-lacking apologue. With the freshly burnished shield of The Institution to the fore, the MEHS are supremely confident that they shall triumph. As if inscribed in the Holy Lible, writ large so to speak, everything would seem to favour The Institution. Why? Here's the rub... the reason for the unabashed confidence of The Institution lies firmly in the base impecuniosity of Individual V who is markedly unemployed. It would be almost inconceivable that our imagined MEHS were not aware that by a remarkable quirk of the legal system, Legal Aid is not generally available to fight libel cases. 'Ye gods' you shout in your best attempt at a James Robertson Justice, tumbling vulcanous amounts of red hot ash in your already sodden fly as an unread copy of The Times slips down polyester-clad legs to the reclaimed parquet floor in a crumpled heap. You are now sweating profusely from the upper lip whilst ruminating heavily on the central question 'to what degree does this apparent structural resource disparity impact on the overall process'? Forgetting for the moment the land of make-believe, a real case  might serve to enlighten.

I knew I shouldn't have worn heels...

The McLibel Two**

The most high profile case, seen by many as the David versus Goliath libel case was McDonald's Restaurant v Morris and Steel otherwise known as the McLibel trial. At this moment, this libel case can lay claim to be the longest running libel trial in history running to 313 days in court with an additional 28 pre-trial hearings (some running to five days). Both Steel and Morris were denied legal aid. As a consequence they were dependent on lawyers and trainee barristers providing fragmentary pro bono work. Because of the complexity and intricacy of the case and the nature of the allegations against them, Morris and Steel ended up largely defending themselves. McDonald's were reported as having spent in the region of £10 million on legal costs whereas Morris and Steel's costs were estimated at around £30,000 -£40,000.

Of course it's expensive, it's Saville Row and
one must always look finessed before the beak
What this meant in real terms was that McDonald's could draw upon expert witnesses from around the world, could finance the travel and hotel costs of witnesses and instruct and maintain top barristers and lawyers to provide continuity and solidity to their prosecution. Lacking the financial resources, Morris and Steel patently could not and were to eventually lose the case because of this colossal imbalance in resources. However, in the public eye it is Morris and Steel who are deemed to be the moral victors, a classic case of David versus Goliath. For McDonald's, despite the millions of pounds invested in legal representation, their victory was somewhat pyrrhic being described by various commentators as 'the worst Corporate PR disaster in history'. In 2005, the McLibel Two as they became known, took the British government to the European Court of Human Rights which ruled that Article 6 (sec1), and Article 10 of the Convention had been breached in the course of the original trial:

"Budgie... I'll have your arse"

Formidable reserves - you've either got it or you ain't!

It may be that the sheer size of organisations can imbue a sense of invulnerability and righteousness and as a consequence, in these sorts of cases there might develop at the outset either a feeding frenzy sort of mentality or indeed its polar opposite; a sense of collective well-being not dissimilar in its corporeal manifestation to that experienced in the lacklustre euphoria of a post-coital Woodbine or two. One can almost hear the strains of 'Oh hallelujah and praise the Lord our God almighty' in the dying gasps of a desolate salt 'n' vinegar stroke.

The real winners are....?

However, little has changed practically in the ability of a defendant accused of libel to secure legal aid to fight a case.  Sadly, most succumb in the initial stages to the immense pressure and apologise and/or settle out of court. Few fight on. And there can be very good reasons. Readers of this blog may also be unaware that a claimant can instigate a 'spurious libel action' resulting in the ratcheting up of massive costs on both sides running into hundreds of thousands or even millions of pounds. Many claimants have utilised 'no win - no fee' agreements with lawyers to embark upon libel cases. They can then choose to drop their case on the eve of the libel trial without fear of suffering any legal penalties? Given this, there is little incentive for lawyers not to draw out libel proceedings in order to ratchet up costs?

Libel - a growth industry

Moreover, many readers may not realise that because the UK's libel laws so favour the complainant, the UK has become home to a phenomenon called 'libel tourism'? What does this mean practically? Let's change the scenery and but keep the characters of our above hypothetical example and say that Claimant W is now an individual of some wealth, based in Saudi Arabia.

A journalist - Journalist V - authors an article which is published in a journal critical of Claimant W. In order to silence criticism and future investigative reporting of Claimant W's dealings, Claimant W decides that Journalist V has defamed him. Claimant W wishes to use the claimant-friendly libel laws and courts of the UK. Armed with his vast reserves of money or alternatively suitably armed with a legal team working on a no-win, no-fee basis, Claimant W will use the UK's extremely sympathetic libel laws to sue the journalist for libel through the British High Courts. 'But how?' I hear you ask.

Could you turn the volume of
your writing down to.. er... zero?

It's rather simple. The journal in which the article is published is widely distributed in Saudi Arabia but sells only a handful of copies in the United Kingdom. This is enough for Claimant W. All he has to do is to prove distribution or that a handful of people in this jurisdiction (the UK) have read the claimed defamatory words (even if they were published in another territory or jurisdiction). He claims he has been professionally diminished or his reputation damaged by the article and he and his legal team board the private train, make their way to first class and simply sit back and wait until they arrive at their destination - shittercarts full of money!

From the above, it is clear the the UK libel laws need drastically reforming. Despite recent changes to the  way libel actions are funded through the use of Conditional Fee Agreements (CFA) or in everyday parlance no win-no fee, prosecuting a libel claims is relatively simple. Defending one on the other hand and accessing the necessary resources do this is at best non-existent and concomitantly immensely difficult and costly to the individual as the McLibel case has demonstrated.

However, the 'chilling effect' of the threat of libel action has far more serious implications for freedom of speech and freedom expression via online blogging as this author knows only too well. The libel laws must be radically overhauled.

Sign the petition for libel reform at Libel Reform Campaign

(1) Webster's New World Law Dictionary Copyright © 2010 by Wiley Publishing, Inc., Hoboken, New Jersey.
(2) ARTICLE 19 GLOBAL CAMPAIGN FOR FREE EXPRESSION Submission to the 91st Session of the United Nations Human Rights Committee on Respect for Freedom of Expression in the United Kingdom of Great Britain and Northern Ireland, Pg 8, sourced at
(3) Cohen N, It's time to change our libel laws, sourced at

Disclaimer: The above comments are the opinion of the author. All the events and characters in the above hypothetical examples are fictional apart from those that are obviously real. Any similarity to the name, character and history of any living person, is entirely coincidental and unintentional. All punctuation is of a rather haphazard nature. Moreover, if you were not in line when sense of humour was universally distributed and feel that any of the comments are not amusing, are unfair or you believe you have personally been wronged, please take the time to firstly contact the satirically challenged lecturer before embarking upon an expensive libel action. If you wish to follow this course of action, please state the nature of what you believe is the specific hurt or damage. All complaints will be treated with the straightest of faces and amended if deemed necessary. This blog also operates a right to reply should one feel the necessary urge.

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  1. Fortunately, my country, the US has recently passed legislation protecting Americans from libel tourism actions lodged in the UK where it is shown that the conduct alleged falls within the realm of US guarantees of the right to free speech. In addition, the US law allows the target of this libel action to recover costs from the party filing the action. This is but one way of fighting back against Goliath.

    In my own experience, while living in the UK, I am certain that a case in which I was involved, which should have received extensive national and international press coverage a la the recent Twitter case, was largely ignored by the British press because of threats of lawsuits or other actions by a Goliath.


  2. Hi, thank you very much for help. I am going to test that in the near future. Cheers

    No Win No Fee Claims