By Dom Serafini
There are different ways to curtail a free and open press: Censorship, threats, blackmail, well-orchestrated deceits, licensing journalists, etc. But, besides being killed as happened in Mexico (just in 2009, seven journalists were slain), the most hideous of all is using a court of law as a tool to silence speech, especially when it’s not a criminal court but a civil court — just to extract pecuniary awards. This aspect is even more hideous than withholding advertising support to the offending media, when published stories are known to be accurate.
Recently, Great Britain has come under fire for its frivolous libel laws, better known as “libel-tourism” because it refers to court cases tried in London, even if none of the litigants (or the offending media) is based there.
Using defamation as a tool to silence the press is a common occurrence in Italy, but I was totally surprised that such things could happen in Britain.
In Italy, defamation laws always existed, but were confined to the criminal court. Only recently this type of case moved to the civil court for multimillion euro awards. On average, every year there are more than 400 libel suits against the press in Italy, for awards in the order of 15 million euro.
This predicament made the Italian press shy away from investigative reports. In addition, the huge monetary settlements silenced the independent media, since only large corporations can afford to go to a court trial (libel insurance is not available). At times, it is a sufficiently subtle threat made by a rich subject to silence a story from a small media outlet. Technically, in Italy a journalist can be sued for libel by saying that so-and-so “doesn’t know the Italian Constitution” (by the way, the Constitution doesn’t explicitly protect freedom of the press). A further deterrent introduced in Italy, is “privacy violation,” intended purely as a tool to protect public figures who don’t want to be under scrutiny.
With 259 libel tourist cases in 2008, Britain is not too far off from Italy. But the U.K. has the added reputation as the most attractive place to sue someone (especially in England and Wales). There are reports of an Australian newspaper killing an interview with a British scientist, for fear of being sued in London. A Danish radiologist was sued in London by a U.S. company because of a speech he delivered at Oxford. A British cardiologist was taken to court in London because of an interview he gave in Washington, D.C. A few years ago, Richard Perle, an adviser to President George W. Bush, threatened to sue investigative reporter Seymour Hersh in London, because of critical articles about him. A U.S. writer was sued in London by a Saudi billionaire because her book was available in Britain. A U.S. film star took U.S. tabloid the National Enquirer to court in London because of an unappreciated story that appeared on the paper’s website (available to British readers). A French resident won a libel suit in London again American Vanity Fair, while a Russian oligarch won a libel suite in London against the U.S. business magazine, Forbes.
Perhaps, because of these abuses and absurdities, British Justice Secretary Jack Straw recently announced a sweeping review of the libel law. In 2008, the U.S. House of Representatives passed a bill that prohibits U.S. courts from enforcing foreign libel judgments. A similar bill was introduced in the U.S. Senate last year. Several U.S. states already have anti-libel tourism laws. It is expected that the federal Congress would act soon.
In the U.S., if a libel suit is considered frivolous (as long as the food industry isn’t involved), the judge throws it out, and can even ask the claimant to compensate the court for the time and effort it took to throw it out.
Any American public figure bringing a libel action has to prove that what was written was not only untrue but published maliciously and recklessly.
However, pre-emptive censorship is not just a problem for Italy or Britain, but for the entire EU, which, unfortunately doesn’t have the power, the will or the leadership to tackle it.
Fortunately Iceland is coming to the rescue with a proposal of an “off-shore” haven for press freedom, especially for investigative journalism (Iceland Modern Media Initiative).
Reykjavik is expected to pass a law for press protection for media based there. It’s a good idea both for Iceland and the world. Silencing the press with money or the courts is a great defeat to those who have interest in silencing the press. Unfortunately, there is not yet a solution for those who use the power of the gun.