Council of Europe Ministers adopt declaration to address libel tourism

For those interested in matters of jurisdiction and cross-border litigation, the Committee of Ministers of the Council of Europe has now adopted a declaratory text alerting its 47 member states to what it termed the “serious threat to freedom of expression and information” posed by the practice of libel tourism – a practice where one chooses a plaintiff-friendly jurisdiction in which to bring a libel suit against a journalist, publisher, or academic. In calling for the reform of defamation laws in Europe to prevent libel tourism, the Committee of Ministers is also calling for some uniformity of standards.

For those unfamiliar with the organs of the Council of Europe, the Committee of Ministers is the Council’s executive body, consisting of all Foreign Ministers from the Council’s 47 member states or their deputies. The declaration adopted last week, while not a legally binding text, serves to add the voice of a weighty regional group of states to the claim that libel tourism and forum shopping in defamation cases can produce a chilling effect on expression and the availability of information. A copy of the declaration, entitled the “Declaration of the Committee of Ministers on the Desirability of International Standards dealing with Forum Shopping in respect of Defamation, “Libel Tourism”, to Ensure Freedom of Expression,” can be found here.

Based in Strasbourg, France, the Council of Europe is a regional organization aimed at promoting respect for democracy, human rights, and the rule of law across the European continent (with Belarus and Kazakhstan being the only non-member-states, in addition to Vatican City and Kosovo). The Council was established in 1949, led by the efforts of Winston Churchill among others, and although often confused with the 27-member state European Union, it remains a separate organization.

Pursuant to article 15 of the organization’s constitutive treaty, the Statute of the Council of Europe, the Council’s Committee of Ministers may make recommendations to member states on matters for which the Committee has agreed a common policy. In addition, article 10 of the European Convention on Human Rights, to which all the Council of Europe states are party, recognizes the important role for freedom of expression in democratic societies, and the fine balance to be struck between exercising rights to freedom of expression and protecting a person’s honour and reputation. Anti-defamation laws are not prohibited under the European Convention on Human Rights when they serve a legitimate aim, but any limitation on the guarantee of freedom of expression must be justified as “necessary in a democratic society.”

The problem is that not all national laws on defamation are the same, with substantial variances in stringency and approach, (some a mixture of criminal law and tort law), as well as varying definitions of first publication and other key terms, along with significant differences in damage awards, costs and statutes of limitations, leading to the phenomenon known as libel tourism. In some cases, complainants with a beef about a publication have chosen the jurisdiction thought to be the most likely to provide a favourable judgment or where it was easiest to sue. In other cases, a jurisdiction might be chosen where the threatened cost of the process causes the defendant to capitulate or accept a default judgment, or where the cost to the plaintiff is limited by the use of contingency fee or “no fee/no win” agreements. Still others might choose a jurisdiction that offers the prospect of significant (and some have argued, disproportionate) damage awards.

The Committee of Ministers has recognized that such situations can have a chilling effect on our rights to freedom of expression and access to information, potentially silencing those with something valuable to say, or causing content on the Internet or in a library to be withdrawn from public viewing due to threats of a lawsuit. The Committee of Ministers has also recognized that: “In some cases libel tourism may be seen as the attempt to intimidate and silence critical or investigative media purely on the basis of the financial strength of the complainant.”

The UN Human Rights Committee, within its concluding observations concerning the UK’s periodic report under the International Covenant on Civil and Political Rights, made similar points in 2008, expressing concern that the UK’s “practical application of the law of libel has served to discourage critical media reporting on matters of serious public interest, adversely affecting the ability of scholars and journalists to publish their work, including through the phenomenon known as libel tourism.” (UN Doc. CCPR/C/GBR/CO/6 at para 25, available from here).

Cross-border publication by internet

The availability of publications on the Internet further exacerbates the situation, making it hard to predict in which jurisdiction an individual may choose to sue. On this point, the Committee of Ministers echoes the words of a Joint Declaration issued last year by four independent experts serving with four different organizations. These experts were the UN’s Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, the Organisation for Security and Co-operation in Europe (OSCE)’s Representative on freedom of the media, the Organisation of American States (OAS)’s Special Rapporteur on freedom of expression, and the African Commission on Human and Peoples’ Rights (ACHPR)’s Special Rapporteur on freedom of expression and access to information in Africa. In their joint “Declaration on Freedom of Expression and the Internet,” adopted on 1 June 2011 and found here, the four experts recommended restricting jurisdiction in legal cases relating to Internet content “to states to which those cases have a real and substantial connection, normally because the author is established there, the content is uploaded there and/or the content is specifically directed at that state.” The four rapporteurs further advised that: “Private parties should only be able to bring a case in a given jurisdiction where they can establish that they have suffered substantial harm in that jurisdiction,” adding the words “rule against libel tourism” at the end.

According to the UN Human Rights Committee: “The advent of the internet and the international distribution of foreign media also creates the danger that a State party’s unduly restrictive libel law will affect freedom of expression world-wide on matters of valid public interest.” (UN Doc. CCPR/C/GBR/CO/6 at para 25).

Changes afoot at the national level?

Preventing libel tourism is not, however, without controversy. During the 2010 UK General Election, the main political parties each promised libel law reform, but government proposals for change have taken some time to come forward given extensive consultations. The government’s Defamation Bill was at last released in May, with details found here. Current clause 9 on jurisdiction may hamper libel tourism, rather than bring it entirely to an end, but the results of the Government’s consultation indicated that not all considered libel tourism to be a problem requiring attention. Plus, consideration needed to be given to the impact of EU law on differential treatment as well as the Lugano Convention on jurisdiction and the enforcement of judgments in civil and commercial matters. (The “notes on clauses” to the Bill can be found here.) Given the debate, it is understandable that the UK reserved its position on an earlier draft of the Council of Europe declaration due to the “pre-legislative process under way on the subject in the United Kingdom” (see here).

As for an across-the-pond perspective, in August 2010, President Obama signed into law, an Act to protect American authors and publishers from foreign defamation lawsuits by blocking the recognition and enforcement of foreign libel judgments by US courts, where those judgments failed to comply with the free speech and freedom of the press protections of the US Constitution. This Act, colloquially known as the SPEECH Act, (for Securing the Protection of our Enduring and Established Constitutional Heritage Act), is said to be inspired by the legal battle that ensued after American author Rachel Ehrenfeld was sued for libel in the High Court in London for a book that sold only 23 copies in the UK over the Internet.