A long-awaited declaration by the Council of Europe’s committee of ministers on libel tourism has been hailed as an important step towards a wider policy adjustment both within the Council of Europe and at European level.
It affirmed that libel tourism "constitutes a serious threat to the freedom of expression and information" and called on European governments to "provide appropriate legal guarantees against awards for damages and interest that are disproportionate to the actual injury".
Much of the declaration is hard-hitting deploring that, in some cases, libel tourism is used to intimidate and silence critical or investigative media purely on the basis of the financial strength of the complainant.
But it has no binding force. However, its power is to signal to European governments that national laws should be aligned with Strasbourg case laws and that they should start a process of setting up standard rules applicable to defamations cases.
The declaration is to be welcomed but why has it taken them so long? In the US the issue was settled half a century ago when, in a ringing supreme court judgment in the case New York Times v Sullivan, justice Brennan acknowledged that journalism dealing with high profile public matters must be “protected not chilled, that journalists can and do make honest mistakes; and that the first amendment – ‘Congress shall make no law abridging the freedom of speech or of the press’ – is a rock on which to defend free expression”. The judgment made it virtually impossible for public figures to receive damages for libel unless they can prove "actual malice".
Until then journalists were relentlessly on the receiving end. Ben Bradlee, former executive editor of the Washington Post, described what he faced up to when defending a case involving his two reporters, Bob Woodward and Patrick Tyler. "If I had known”, he said, “that the 84-inch story would cost the Post more than $1.5m to run the story, plus thirty lousy days as a defendant plus another seven and a half years of appellate litigation. I would have told them both to go piss up a rope."
The same feeling was expressed in a lecture delivered last year at City University by Alan Rusbridger, the London Guardian editor. His newspaper had been for a long time at the forefront of defending a blizzard of high profile cases against Interbrew and supermarket giant Tesco among others. In the UK, editors, journalists and the NUJ union have for many years been lobbying for reform of the libel laws and they have succeeded in winning political support for the idea.
But the road to libel reforms in the UK has been excruciatingly long dating back to the 1930s and tortuous being abused by lawyers and their system of conditional fee agreements which has produced one of the most mind-bogglingly expensive media legal systems in the world, earning London the reputation of being the libel capital of the world. Journalists daily run the risk of being sued, injuncted or prosecuted, or all three at the same time. Rusbridger said “The overwhelming majority of these cases involved decent journalists trying to write about serious things about which the public ought (in my opinion) to know. We simply can't continue to make the risks of doing this sort of journalism so punitively expensive, time-consuming and unpredictable.”
Unless the libel laws are reformed in countries like the UK, the declaration by the Council of Europe, however bold, would continue to get bogged down in the quicksand of British libel laws.