Freedom of speech vs right to privacy
Last week I was speaking to a barrister about his recollections in dealing with road traffic accidents. ‘It is quite extraordinary’ he said, ‘how many accidents are caused by two stationary cars!!’. Of course, the cars could not both have been stationary, but in the minds of both participants they don’t remember their car moving.
With a degree in psychology human behaviour has always fascinated me. Our memories are not snapshots of reality; we make up our memories according to what we perceive which differs from person to person. Ask two people directions one will tell you to turn right at the Duke of Kendal and then left at the Victoria, another will say turn right at the Indian restaurant and then left at the chip shop and another will say take the third right and then second left – all may be correct
But not all litigants base their claims on misplaced, but honest, perceptions, many interweave into their claims tactics of bluff and double bluff designed deliberately to outrage, exhaust, intimidate, or run their opponent out of money. This type of litigant is a nuisance because these tactics often work.
Nowhere is this seen more starkly than in libel cases which are often brought to the London courts.
London is the haven for ‘libel tourists’; wealthy, aggressive, international litigants who want to punish authors and publishers for making public information about them. These litigants issue a libel claim deliberately to harass, intimidate, and financially and psychologically exhaust authors, and publishers through the law courts.
With the recent flurry of Russians bringing libel lawsuits against Catherine Belton and her publisher HarperCollins against her book ‘Putin’s People’ (one of my favourite books), the Department of Justice published a consultation paper proposing reforms to our Defamation laws.
In the US these types of civil law actions are called “SLAPPs” ‘Strategic Lawsuits Against Public Participation’. It is the claimant in the US who must prove the insult was false – under the First Amendment protections for free speech.
However, in England there is a presumption that something written or spoken which is insulting against someone’s reputation is prima facie false. It is then up to the defendant, to prove the insult was true – which is called justification.
Libel lawsuits are games invariably played by the wealthy to stop journalists and newspapers washing their dirty linen in public. First, wealthy litigants are likely to have more to lose if their reputation is tarnished, but also the cost of taking a libel lawsuit is prohibitively expensive. The cost of a full trial can run into hundreds of thousands, if not millions, of pounds. On top of this, costs are usually paid by the loser which encourages many publishers to settle or more often not print information about anyone rich enough and aggressive enough to sue. This disincentive to publish, it is said, interferes with the right of free speech.
The Department of Justice consultation document was in response to libel actions brought by Roman Abramovich, three other Russian oligarchs and Rosneft, the Russian oil company. No damages were awarded, and the cases were settled or thrown out following minor corrections – but it takes a brave author and publisher to put their heads in the lion’s mouth.
Governments always need to weigh up the need to protect a reputation and the freedom of speech. The last time, our government introduced measures to curb ‘libel tourism’ was in 2013 when it enacted the Defamation Act. Under this legislation, the defence of justification was extended for defendants if they could prove the claim was designed to cause ‘serious harm’ – or that the story was ‘in the public interest’ - or was an ‘honest opinion’.
However, following the claims brought against Catherine Belton for her book ‘Putin’s People’ Foreign Secretary Liz Truss is keen that the defence of justification is further extended such that the claim must show ‘actual malice’ or that the defendant either knows the statement was wrong or was reckless.
Litigation should not be a game, for the rich to play, to stop the freedom of speech and the right for people to know the truth about rich, nasty, people – but there needs to be a balance drawn up between the right to privacy and the freedom of speech.
I for one thoroughly enjoyed the book ‘Putin’s People’ and can recommend it. It was a book which throws light onto the mind of Putin and the people he is surrounded by it is a book which needed to be written and our defamation laws should protect people like Catherine Belton and HarperCollins from bringing this information about Putin, the man and his experience and tactics to our attention.
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