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Former Law Lord Lord Hoffmann yesterday delivered a strong defence of the current state of English libel law as it relates to “foreigners” in his Dame Ann Ebsworth Memorial Lecture at Inner Temple Hall.  A copy of the Lecture can be found here. Lord Hoffmann argued that English libel law does not unduly encourage libel tourism and that the well-publicised complaints in this regard stem from an American tendency “to believe that their way is the only way” and the self-interest of the British press.

In recent years there has been a great deal of critical comment regarding the ability of claimants who are not citizens of or domiciled in England and Wales to sue in the English libel courts and the susceptibility of foreign defendants to libel actions here.   English libel law has variously been described in the press as “the democratic world’s most illiberal” and as a blight on our international reputation. Lord Hoffmann, though, strongly disagrees with these criticisms. His view, as explained last night, is that the complaints about so-called libel tourism “come entirely from Americans” (“enthusiastically supported by the media in this country“) and are simply “based on a belief that the whole world should share [the USA’s] view about how to strike the balance between freedom of expression and the defence of reputation“.

Lord Hoffmann explained that the English libel courts will decide whether or not to take jurisdiction based, in summary, on the following principles (see, for example, Don King v. Lennox Lewis (2005) 13 EMLR 45):

1.       Publication takes place, and the tort of libel occurs, where the defamatory words are heard or read – in relation to the Internet, this means the place where a posting is downloaded (see Godfrey v Demon Internet [2001] QB 201 and Gutnick v Dow Jones Inc [2002] HCA 56). According to Lord Hoffmann defendants can have no legitimate complaint since “if you are publishing an article on the internet, you are inviting the whole world to read it“.

2.       In relation to claimants who are citizens of the European Union, the English courts are required under European law (see article 5(3) of the Brussels Convention and Shevill v. Presse Alliance S.A. (Case C-68/93) [1995] A.C. 18) to take jurisdiction in circumstances where there is distribution of the relevant publication here and where the victim claims to have suffered damage to his reputation here.  

3.       In other cases (i.e. not involving an EU citizen), a claimant is entitled to rely upon the general presumption that the natural forum in which to try the dispute is that of the jurisdiction where the tort was committed (i.e. where the publication occurred). 

4.       A claimant is not allowed to complain in English proceedings of any publication outside this jurisdiction and so can only bring proceedings in England where he has a reputation here and can only be compensated in respect of damage to that reputation here. If that damage is insignificant, the English court can strike out the claim as an abuse of process (see Jameel v. Dow Jones Inc [2005] QB 946). 

Lord Hoffman said that there was nothing inappropriate or unusual about this approach. Indeed, he pointed out that English libel law is in line with the rest of the common law world in this regard, referring to the broadly similar positions adopted by the courts in Canada, Australia and New Zealand – the only country out of step being the US. 

Accordingly, while he acknowledged that English libel law is not perfect, Lord Hoffmann said that the case for reform of the law in relation to so-called libel tourism – made so vociferously in the US and in the press – seemed to him to be “far from overwhelming“. Moreover, he said that recent suggestions for the nature of any such reform (most notably by English PEN and Index on Censorship) “greatly oversimplified” the position and were occasionally “very silly” – for example, the suggestion that the English courts to decline jurisdiction unless at least 10% of the copies of the relevant publication were sold in England was dismissed by Lord Hoffmann in the following terms:

“[T]here does not seem to me much logic in saying that if you have significantly damaged someone’s reputation in England, it should be a defence that you have published 10 times as many copies of the libel somewhere else“.

It is fair to say, then, that while many states in the US and the press in the UK are certain of the need for change, Lord Hoffmann is not convinced.