November 8, 2009
Libel threat to force US papers out of Britain
Maurice Chittenden and Steven Swinford
American newspapers and magazines may stop selling copies in Britain and block access to their websites because of our draconian libel laws.
An article that would be regarded as free speech in America under its constitution’s first amendment becomes actionable in the High Court in London once it is deemed to have been published here, however small the readership.
Such is the UK’s reputation as a world centre for “libel tourism” that newspapers are considering whether it is still worth sending a few hundred copies to British subscribers or for sale in hotels.
The warning comes in a memorandum submitted to a Commons select committee on behalf of US newspapers including The Boston Globe, The New York Times and the Los Angeles Times. It says: “Leading US newspapers are actively considering abandoning the supply of the 200-odd copies they make available for sale in London — mainly to Americans who want full details of their local news and sport.
“They do not make profits out of these minimal and casual sales and they can no longer risk losing millions of dollars in a libel action which they would never face under US law.
“Does the UK really want to be seen as the only country in Europe — indeed in the world — where important US papers cannot be obtained in print form?”
David McGraw, litigation attorney for The New York Times, the Boston Globe and the International Herald Tribune, said: “What the memorandum was trying to say is that the American media generally may be tempted to get out if libel suits proliferate.”
Judges here have also ruled that if even a handful of readers here have clicked on US-based websites, that is sufficient to sue for defamation. As a result US newspapers and magazines are increasingly blocking access to British internet users to avoid being sued.
The National Enquirer, based in Miami, blocked British readers after it was successfully sued in London by Cameron Diaz, the Hollywood actress. Her lawyers showed that an article she deemed defamatory had been viewed 279 times by British internet users.
Some of the most prestigious US newspapers are now considering similar moves. A source at The Washington Post said blocking British readers online could be considered to avoid defamation suits in London.
The Wall Street Journal is to stop publishing its American edition in the UK ahead of the launch of its revamped European edition on November 17. A Dow Jones spokesman said: “While the threat of lawsuits does not dictate what we publish, it certainly drains scarce time and resources in dealing with unnecessary and unwarranted litigation. We fully support any efforts that would clip the wings of libel tourists.”
Kelly Sager, legal counsel for the Los Angeles Times and a number of other titles, said: “We have had newspapers that have blocked their websites, we have magazines and book publishers that refuse to distribute their publications in the UK because of the libel laws.
“Their information may be perfectly interesting, truthful and of public value but they can’t take the risk.”
The American publishers want a change in the law so that no one can sue them in Britain unless at least 750 copies of a newspaper or magazine are in circulation.
As for online editions, they want a new rule that lawsuits can only be filed in the country where the article containing the alleged libel is uploaded.
A Commons media committee report next month is likely to recommend big changes, to limit legal actions in Britain being brought by people with no connection to the country and no reputation here to defend.
Mark Stephens, the British media lawyer who drafted the memorandum on behalf of American publishers, said: “The concern is that one libel case can wipe out 10 years’ worth of reporting. The economics of fighting for the truth have been so eroded by the huge costs piled on by lawyers.”
Paul Tweed, an Irish libel lawyer who has acted for US celebrities including the singers Britney Spears and Jennifer Lopez in England and Ireland, defended Britain’s libel laws. He said: “In the US they just publish their one-sided, biased version. Do the press want a situation where it is all one-sided propaganda? If somebody has an international reputation that is damaged here they are entitled to use UK laws.
“The Americans want to impose their standards in the UK. It is grossly unfair.”
The Association of American Publishers, which has 300 book firms as members, is also hoping for changes in the law. Judith Platt, director of its Freedom to Read campaign, said: “We are in fear of litigation in the UK.”
The arrival of electronic books is causing publishers a new headache. Last week, more than a decade after it was first published, The Royals, the original version of Kitty Kelley’s coruscating book about the royal family, was made available as an electronic book — except if you live in Britain.
Neill Denny, editor-in-chief of The Bookseller, said: “We are missing out in Britain. The law of libel has become a rich man’s muzzle. It is causing an insidious kind of self-censorship, which results in flimsier books being published in the UK.”
Alan Samson, the publisher at Weidenfeld and Nicolson, said: You have to weigh up whether it is worth all the time clearing investigative books legally when you know that there are people out there circling.”
Publishers are using special software in their efforts to block British readers from viewing their websites, so that they can avoid being sued in the High Court.
The system, known as geo-filtering, enables the owner of a website to block readers from particular geographic zones. The software can limit access to whole websites or to specific articles.
When internet users visit a website they are identified by a unique number called an internet protocol (IP) address, which gives their location. The geo-filtering software ensures IP addresses from a particular country are all blocked.
The technology is already common in other fields. The BBC uses it to stop people from abroad using the iPlayer, its online TV replay service, while some online retailers use it to block foreign users.
Newspapers and magazines first used the technology to protect themselves in August 2006, when The New York Times installed a filter on a story about the arrest of British terrorism suspects. Because a trial was pending, the paper blocked UK readers from reading the article.