[UK- Commons Committee] US LEGISLATION ON LIBEL TOURISM 'MORE THAN AN EMBARRASSMENT'
2010-02-24

Subject: Media Lawyer Bulletin

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[UK- Commons Committee] US LEGISLATION ON LIBEL TOURISM 'MORE THAN AN EMBARRASSMENT'

JOURNALISM Report Tourism
Feb 24, 2010 10:46:02 AM

Page 1

The fact that legislators in the United States are taking steps to
protect freedom of speech from "libel tourism" in British courts is
"more than an embarrassment", says the Commons Culture, Media and Sport
Select Committee.

There are some procedures to prevent those with no good reason for doing
so from pursuing claims in the English courts, says the committee's
report, Press Standards, Privacy and Libel.

But the Practice Direction giving the grounds on which permission can be
granted for service of proceedings outside the jurisdiction is very
broad, gives no guidance on the extent of publication in the UK, and
gives the judge considering an application wide discretion.

The committee says it received "repeated submissions suggesting that,
because of the combined effects of the rules on jurisdiction and of
global publication on the internet, what are said to be blatantly
inappropriate cases, involving foreigners suing foreigners, are reaching
UK courts".

It adds: "Witnesses have told us, further, that defendants in such
cases, who find themselves obliged to fight actions in a foreign country
under foreign law, are often placed at a disadvantage, to the detriment
of free expression."

Media organisations in the United States told the committee that leading
US newspapers were actively considering abandoning their "minimal and
casual" sales in London, on which they did not make a profit, as they
"can no longer risk losing millions of dollars in a libel action which
they would never face under US law."

The report says the states of New York, Illinois, Florida and California
had passed legislation empowering their courts to refuse to enforce the
judgments of foreign courts in libel cases unless those courts had the
same level of protection for freedom of expression as the state and US
constitutions, and a similar Bill had been introduced in the Hawaiian
legislature.

A Bill had also been passed by the House of Representatives in the
Federal legislature, and might be taken up in the Senate.

But Lord Chancellor Jack Straw told the committee that he was not aware
that the Government had made any representations on either the pending
or the passed legislation in the United States.

The report says: "Whatever the constitutional situation, or diplomatic
niceties, we believe that it is more than an embarrassment to our system
that legislators in the US should feel the need to take retaliatory
steps to protect freedom of speech from what they view as unreasonable
attack by judgments in UK courts."

Some Bills presented in Congress "clearly demonstrated the depth of
hostility to how UK courts are treating 'libel tourism'," the report
says, adding: "It is very regrettable, therefore, that the Government
has not sought to discuss the situation with their US counterparts in
Washington, or influential states such as New York and California. We
urge it to do so as soon as possible."

The report also called on the Ministry of Justice and the Courts service
to make it a priority to agree a basis for collecting statistics on
jurisdictional matters, including claims admitted and denied, and
successful and unsuccessful appeals on those decisions.

It added: "In cases where neither party is domiciled nor has a place of
business is the UK, we believe the claimant should face additional
hurdles before jurisdiction is accepted by our courts.

"On balance, we believe there is sufficient evidence to show that the
reputation of the UK is being damaged by overly flexible jurisdictional
rules and their application by individual High Court judges, as
exemplified by Mr Justice Eady in the Mardas v New York Times case.

"We recommend that the Ministry of Justice and the Civil Justice Council
consider how the Civil Procedure Rules could be amended to introduce
additional hurdles for claimants in cases where the UK is not the
primary domicile or place of business of the claimant or defendant.

"We believe that the courts should be directed to rule that claimants
should take their case to the most appropriate jurisdiction (ie the
primary domicile or place of business of the claimant or defendant or
where the most cases of libel are alleged to have been carried out)."

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