The recent criticism of the UK's libel law by the United Nations sounds particular alarm. This criticism is perhaps not surprising given that, despite various liberalising innovations in our law over the past 20 years, our courts still represent an unduly attractive forum for libel claimants around the world to bring their actions.
There are several reasons for this. Firstly, UK libel courts are often prepared to make big payouts. The libel lottery of the 1980s, where plaintiffs could recover £500,000 or more in damages, has been ended but claimants can still be awarded very substantial sums. For example, in 2004 the maverick MP George Galloway was awarded £150,000 in an action against The Daily Telegraph over false allegations that he was being paid off by Saddam Hussein's regime.
Another attraction is that the law remains much friendlier to claimants than for example that of the US. There, a wide-ranging public-figure defence makes it difficult for a celebrity to succeed in a libel claim. By contrast, the UK equivalent of this, the so-called Reynolds defence, confers much less protection for the media, despite recent advances.
And the UK courts have tended to welcome overseas actions with open arms. In respect of any claim against a person or entity within the EU, a claimant has a right to bring a libel action in our courts provided there has been publication, including on the internet, of the material in question within the jurisdiction.
In respect of claims against people or entities situated outside the EU, our courts will still allow the action to proceed here provided it can be established that the court here is a convenient forum for the dispute.
But even where a libel tourist claimant is successful and obtains an award of damages, that may not be the end of the matter. If the defendant has no assets within the UK, the claimant may be able to recover the damages awarded if he or she can enforce that award in the defendant's home jurisdiction. However, in one case, in 1996, a court in Maryland undertook a review of English libel law, said it was largely unreconstructed since the Star Chamber and held that any enforcement of UK libel awards on US soil would be an affront to that country's public policy. Such actions often only serve to sully the name of our judicial system.
Dan Tench is a partner in the Media Litigation Department at OlswangReuse content