Libel tourism: The global threat facing journalists

In the midst of these changing times, there is a fresh legal challenge facing journalists all over the globe. For an article published in Abuja, a Nigerian journalist could face libel charges in London as long as that published material could be accessed there, whether in print or online. This trend has been termed Libel Tourism.

Often, individuals or organisations dissatisfied with published materials tend to look for areas where the libel laws tend to favour the plaintiff(complainant) by placing the burden of proof on the defendant and by awarding more payouts in damages. England has such laws and has been attracting several high profile cases from all over the world.

A British consultant cardiologist, Dr Peter Wilmshurst, is being sued by an American company, NMT Medical, for questioning the effectiveness of a new heart implant device. Wilmshurst raised his criticism at an American conference and his comments were posted on a US website, but he is being pursued at the High Court because a number of cardiologists read the article in Britain.

In another case, a wealthy Saudi businessman, Khalid Bin Mahfouz, successfully sued an American academic, Rachel Ehrenfeld, whose book on funding terrorism sold just 23 copies in Britain over the internet. He was awarded £130,000 damages and costs by London courts and the remaining copies of the book were ordered destroyed.

The trend is putting journalist all over the world under pressure as celebrities are most likely to run to London courts to pursue favourable rulings in libel cases. Dr. Emman Shehu, Director of the International Institute of Journalism in Abuja, thinks the trend is worrying but not quite a surprise.

“It is not a surprise that such a thing is happening because the media is changing in its format with technology which drives media, there is accessibility that’s larger and faster than what it used to be, it is obvious that even the existing libel laws will have to be tested in the light of this situation, so yes, people will probe to find out the possibilities and I think these are uncharted territories. It’s what happens every time you have technological advances,” he said.

London has been a favourable libel tourist destination in recent years because the British law tends to put the onus of proof on defendants in libel cases and there is less tolerance for freedom of speech there. The case of Saudi businessman, Khalid Bin Mahfouz, is a pointer. Over the years, he has sued or threatened suits 33 times in England alone over allegations that he is funding terrorism. He has also taken legal actions in Belgium, France and Switzerland.

This, experts fear, may be putting undue pressure on journalists as Dr. Shehu agreed, “Of course it will. With every advancement in technology, there are new challenges, especially for journalists and it not unusual.”

But the infamous reputation England has garnered as a preferred libel tourist destination is a source of worry for the country’s authorities. Following sustained campaigns by media groups and some newspapers in Britain and the United States, Britain is being pressured to review its libel laws. American newspapers like The New York times, The Washington Post and The Boston Globe have threatened to stop selling their papers in the UK, some have even threatened to block access to their web sites from the UK for fear of libel threats.

UK’s justice secretary, Jack Straw, last November announced plans to reform the country’s libel laws. He feared the large legal fees involved in defamation cases in English courts are jeopardising freedom of speech, potentially curbing vital debate by scientists, academics and journalists.

“A free press can’t operate or be effective unless it can offer readers comment as well as news. What concerns me is that the current arrangements are being used by big corporations to restrict fair comment, not always by journalists but also by academics,” he said.

Although the new proposals are still being discussed, it is likely they would cap defamation damages at 10, 000 British Pound Sterling, make apologies the chief remedy as well as shifting burden of proof so that claimants have to proof actual damage as a result of the publication. Another possible outcome will be the prohibition of hearing defamation cases unless 10% of the offending publication’s circulation is in the UK.

Straw is keen to have the new libel laws in place and believes it will create more balance in the system.

This steps, though laudable are still deficient. There also needs to be changes in local laws to shield media from libel tourist jurisdictions. Dr. Emman Shehu feels other countries including Nigeria, where such cases have not taken effect yet, ought to make a stand because it is a global problem.

“It’s up to journalists now to work collectively to bring pressure to bear on the various governments to harmonise those laws that tend to put journalists at a disadvantage at a global level, because we are talking a at a  global level because of globalisation and so our reaction must be at a global level,” he said.