Burden of Proof
A look at the challenges posed by English libel laws
Burden of Proof
A look at the challenges posed by English libel laws
When historian Deborah E. Lipstadt was sued for libel by David Irving for calling him a Holocaust denier, she was told by many that, because English libel laws are so onerous to the defendant, she should concede. But there was too much at stake for the historian who’d made a career of exposing those who had denied historical truth. “If I hadn’t fought, then I would have surely lost,” Lipstadt explains. “It would have become illegal to call the world’s leading Holocaust denier what he is.” Mick Jackson’s film DENIAL dramatizes Lipstadt’s (Rachel Weisz) remarkable legal battle against Irving (Timothy Spall), a case in which she is tasked by English law to prove the Holocaust actually took place. Her extraordinary legal team, headed up by solicitor Anthony Julius (Andrew Scott) and barrister Richard Rampton (Tom Wilkinson), craft a complex strategy to fight Irving’s suit. With only limited possible defenses allowed by law, Lipstadt’s team choose to defend her by justification, that is, they needed to prove the veracity of her statements. In English courts, which place the burden of proof on the defendant, this was going to be no small task. To demonstrate that Irving had twisted the truth, they would first have to prove the reality of the Holocaust. To shed light on how libel laws work in England, we look at the history of the law leading up to DENIAL and explore several history-making cases.
The first laws regulating defamation were established to control insults against judges or peers, an act referred to as scandalum magnatum. The Statute of Westminster 1278 proclaimed that "from henceforth none be so hardy to tell or publish any false News or Tales, whereby discord, or occasion of discord or slander may grow between the King and his People, or the Great Men of the Realm.” However, it wouldn’t be until the start of the 17th century that the cases started to be heard in the Star Chamber, an event that many legal scholars attribute to James I’s prohibition of dueling. Barred from seeking satisfaction on the field, injured parties sought to draw metaphorical blood in court.
In England, the law defines libel as any published statements that can be seen to defame someone in such a way as to cause him or her loss of trade or permit a reasonable person to think less of him or her. While England’s definition of libel aligns itself with most other nations’ statutes, its rules defining the defense of a libel charge are quite different. Unlike in most other developed countries, England puts the burden for proving the truth of an allegation on the defendant, not the plaintiff. The courts allow three general defenses against a suit of libel: justification, in which the defendant must prove his supposedly libelous statements are true; fair comment, in which the defendant proves the comments were uttered as opinion; and privilege, in which utterances made under specific circumstances, like speaking in Parliament, are protected. Difficult to defend, libel cases are also expensive to enter into, since the losing side must pay court charges as well as any monetary amount awarded by the court.
In the 19th century there were a few minor attempts to reform libel laws. The Libel Act of 1843, for example, allowed defendants, as well as plaintiffs, to reclaim legal fees if they won their case. It also allowed defendants in criminal libel cases to use justification as a defense (but only in such cases as the truth benefited the public interest). Previously justification was only a defense in civil cases. But overall, libel laws remained unchanged until the Defamation Act of 2013, which provided sweeping reforms to existing libel laws. While it left unchanged the British precedent of making the defendant prove the validity of the assertion, it provided looser definitions of what constitutes a true statement, an opinion, and public interest, as well as making the plaintiff prove “serious harm” before a suit can move forward. For legal historians, the case of Irving v Penguin Books and Lipstadt remains a potent example of the challenges British libel laws pose to defendants.
On March 1, 1895, Oscar Wilde served papers charging John Douglas, Marquess of Queensberry, with libel. The defaming remark was a card with the infamously misspelled inscription, "For Oscar Wilde, posing somdomite,” that was left at Wilde’s club, the Albemarle, nearly two weeks earlier. This affront was the latest in a series of attacks on Wilde by Queensberry, who was directing his animus at Wilde in a misguided attempt to reconnect with his son, Lord Alfred Douglas. Pressed to the breaking point by personal tragedies––one son, Percy, was mired in debt and alcoholism; another son, Francis, committed suicide the year before under a cloud of gay rumors––Queensberry was desperate to free Lord Alfred, affectionately called Bosie, from what he perceived to be Wilde’s amorous clutches. Writer Frank Harris described Queensberry as "the sort of man who, just because he was afraid of a bull and had pictured the dreadful wound it could give, would therefore seize it by the horns". On February 14, 1895, Queensberry unsuccessfully attempted to disrupt the opening of Wilde’s play, The Importance of Being Earnest, by bringing rotten vegetables into the theater. Angry and annoyed with his father’s antics, Lord Douglas pushed Wilde to hit back by charging his father with libel for having left that note. At the time, according to the Libel Act of 1843, a successful suit could land Queensberry in prison for up to two years. Believing that libel laws were so weighted in the plaintiff’s favor, Wilde had no doubts his suit would succeed. Even the barrister Queensberry approached to represent him, Sir. Edward Carson, originally turned the case down. But when Queensberry spent a small fortune on private investigators, locating and occasionally coercing various male prostitutes to testify against the playwright, Wilde suddenly found himself on the losing side of a libel case. After being bankrupted by having to pay both damages and Queensberry’s staggering legal and investigative charges, Wilde was then brought up on criminal charges after the police were given the evidence the Queensberry’s defense team had presented in court. On May 25, 1895, Oscar Wilde was convicted of gross indecency and sentenced to two years' hard labor. Much of this story was brought to the screen in Brian Gilbert’s 1997 film Wilde, with Stephen Fry as the titled playwright, and Tom Wilkinson as the Marquess of Queensberry.
In 1986, London Greenpeace, a splinter group from the global environmental organization, published and distributed a pamphlet called What’s wrong with McDonald’s: Everything they don’t want you to know. Among their many complaints listed in the leaflet were that McDonald’s sells unhealthy food, unfairly manipulates children with advertising, serves chemically contaminated meat, exploits its workers, and destroys rainforests. In 1990, McDonald’s sued five of members of London Greenpeace for distributing the pamphlet in public. Since English libel laws require that the defendant prove the truth of allegation, three of the named defendants conceded defeat. Helen Steel and David Morris, however, refused to apologize or back down. In the press, the case soon became a David and Goliath case with McDonald’s spending several million pounds to prosecute the two activists, who were able to secure only £30,000 to defend themselves. (Under British libel laws, defendants are not eligible for legal aid.) At one point, McDonald’s offered to drop their suit if Steel and Morris refrained from bad mouthing the corporation in the press. In private conversations, attorneys told the two they were certainly free to say what they wanted to friends in private. After secretly taping these conversations, Steel and Morris provided a counter offer. They would withdraw their publication if McDonald’s agreed to only advertise by word of mouth. In June 1997, the court handed down a 1,000-page decision in which the judge, while he agreed with the defendants on many points, ultimately sided with McDonald’s, awarding them £60,000 in addition to court costs. But the victory was a pyrrhic battle. The press coverage brought worldwide attention to anti-McDonald’s groups and even inspired a documentary, McLibel, by Franny Armstrong and Ken Loach, which played worldwide in festivals and was aired on BBC2. Moreover, the effect of the British courts being used by a huge corporation to go after a cadre of political activist besmirched the legal system for many. "The McLibel case has achieved what many lawyers thought impossible: to lower further the reputation of our law in the minds of all right thinking people," David Panick, a leading barrister, told The Times. In appeals, Steel and Morris were able to reduce their financial penalty, although not reverse the judgment. They brought their appeals to the European Court of Human Rights which sided with Steel and Morris, ruling in 2005 that English courts had failed to protect the rights of journalists, stating, “there exists a strong public interest in enabling such groups and individuals outside the mainstream to contribute to the public debate by disseminating information and ideas on matters of general public interest such as health and the environment.”
In 2003, American scholar Rachel Ehrenfeld published Funding Evil: How Terrorism is Financed and How to Stop It, a study that looked at, among other things, the banking practices of al-Qaida and other terrorist organizations. In particular, Ehrenfeld connected billionaire Khalid bin Mahfouz and his two sons with al-Qaida through the National Commercial Bank of Saudi Arabia (which their family owned) as well as through a network of Islamic charities. Although, as Ehrenfeld is quick to point out, she never states that Mahrouz was directly aware of the connection between his bank and terrorism, Mahrouz took offense and sued for libel in England. While Funding Evil was never published in England, 23 copies were sold in the UK via online vendors, and the first chapter was available on ABC TV’s website, a fact that gave Mahfouz standing to sue. For Ehrenfeld and others, this suit was a prime example of libel tourism, a term used to describe foreign nationals and companies using English courts to sue other foreign entities for libel. Although Mahrouz did not live in England, his lawyers successfully argued that because he owns residences and does business there, he had standing to sue. But, as Ehrenfeld counters to NPR, “I did not live in England, I do not live in England, the book was not published there, so why not come and sue me in the United States?" When Ehrenfeld failed to show up for her court date, the High Court issued a default ruling, ordering her to pay about $250,000, as well as issue a formal apology. Rather than fight the case in England, Ehrenfeld decided to bring the battle home and sued Mahrouz in New York State courts, asserting that his libel suit infringed on her First Amendment rights. The case never proceeded to trial. The district court accepted Mahrouz’s petition for dismissal because the case was outside the scope of New York’s authority. Ehrenfeld then appealed to the New York Supreme Court. While the Supreme Court acknowledged the chilling effect Mahrouz’s suit had on free speech, it conceded that until such time as New York State writes laws against such libel tourism, it is unable to render a ruling. As such, in 2008, the New York Legislature enacted the Libel Terrorism Protection Act, which gives New York courts the right not to enforce libel decisions in courts that have not “provided at least as much protection for freedom of speech and press…as would be provided by both the United States and New York constitutions.” The legislation, nicknamed “Rachel’s Law,” has inspired six other states to create similar protections, and in 2010, President Barack Obama signed into law the SPEECH act which seeks to provide similar protections on a federal law. While the US has enacted laws to protect Americans, journalists from other countries continue to find themselves prey to libel tourism. In 2008, the Ukrainian billionaire Rinat Akhmetov brought libel suits in London against Ukraine's Kyiv Post newspaper and a Ukrainian-language website, Obozrevatel, about stories they published about him. While Kyiv Post quickly apologized to avoid any court costs, Obozrevatel, which could not afford to travel to England, found itself owing a default judgment of £50,000. London attorney Hugh Tomlinson succinctly summed up the nature of the suit in the Financial Times: “This is a Ukrainian attacked in a Ukrainian newspaper in Ukrainian in Ukraine.”
In 2008, the British Chiropractors Association (BCA) sued science writer Simon Singh in a case that would become a rallying call for many who were upset at how British libel laws affected science reporting. The Guardian published in their “Comment and Debate” section Singh’s article “Beware the Spinal Trap,” in which he wrote, “The British Chiropractic Association claims that their members can help treat children with colic, sleeping and feeding problems, frequent ear infections, asthma and prolonged crying, even though there is not a jot of evidence. This organization is the respectable face of the chiropractic profession and yet it happily promotes bogus treatments.” After consulting with various lawyers, the BCA, angry at being taken to task in a major newspaper, were ready to sue for libel. For them, the phrase “happily promotes bogus treatments” would easily guarantee them a successful libel suit. In May 2009, Mr Justice Eady agreed with the BCA, asserting in a preliminary decision that the phrase was not a matter of opinion, but an assertion of fact by Singh. Ready to take this case to court, Singh appealed under the defense of fair comment. While Singh and his lawyers prepared for his appeal, his case was getting a very loud hearing in the court of public opinion. Groups like Index on Censorship, English Pen, Sense About Science, and Nature ran social media and publicity drives in support of Singh. This campaign for Singh, an editorial in Nature asserts, “makes the valid point that debates about scientific claims should be conducted in the open rather than pursued in the courts.” Even The Wall Street Journal jumped into the fray, writing, “Mr. Singh is unlikely to be the last victim of Britain's libel laws. Settling scientific and political disputes through lawsuits, though, runs counter to the very principles that have made Western progress possible.” In April 2010, the Royal Courts of Justice overturned the earlier decision, deciding that Singh’s statement was permissible as fair comment. For many legal observers, Singh’s victory paved the way for the Defamation Act of 2013.
While English libel laws have proven challenging for free press advocates, they have been a godsend for celebrities fighting back against tabloid journalism. In 2006, there was a rash of star sightings in the High Court. Cameron Diaz sued News Group Newspapers for a Sun article that stated, “Justin Timberlake's bride-to-be Cameron Diaz has been caught snogging a married man.” The same year, Kate Hudson won damages and an apology from the British version of the National Enquirer for implying she had an eating disorder with the quip that she was “looking like skin and bones.” Lance Armstrong sued The Sunday Times for a 2004 article that suggested he had cheated. In 2013 the same paper sought restitution for that libel case, writing the former champion, "Your representations that you had never taken performance-enhancing drugs were deliberately false.” Attorney Gideon Benaim tells USA Today that "as Hollywood stars see others successfully taking this approach to protect their reputations, more are following suit.”