Monday, 12 July 2010

Libel migrates across the pond

Many of my fellow ex-pat friends have joked about the ‘reverse migration’ we see of Americans moving to Europe in search of a better, more comfortable life. But according to a recent article by the New York Observer, we may not be alone in this trans-Atlantic migration – libel lawsuits may be coming with us.

For decades it’s been a well-known fact that media lawyers in the US will frequently file lawsuits in the UK using a satellite office of the offending publication rather than suing in a US court. They are far more likely to win their case in Britain than in the US. The UK has arguably the strictest libel laws in the western world, and many media companies here keep a hefty fund on hand to make regular pay-outs to libel victims. When I first started reporting in the UK I had to attend seminars familiarising me with UK libel law, and in many ways I had to unlearn what I had learnt about libel in journalism school in the US. It’s a wholly different animal here.

Reforming UK libel law has been a priority for the Liberal Democrats, who are now a junior partner in the British government. Last week they announced that the government will bring forward a Defamation Bill next year that will aim to end the abuse of British libel law once and for all.

But judging by the latest figures for libel lawsuits in the US this push may be in for an uphill struggle, because the UK has become the international nesting ground for libel lawsuits, which have fled other countries like rats and infested the very foundation of the British legal system. Like termites, these 'libel lice' may be harder to shake off than the government is envisioning.

According to this article in the New York Observer, libel lawsuits in the US have essentially gone the way of the dodo. They have almost completely disappeared. Where did they go? One theory is that they have migrated over to Europe. Media lawyers have learned that it is almost impossible to win a libel case in America, wheras it is almost impossible to defend yourself against one in Europe.

According to the article, America’s major papers have seen the number of libel lawsuits filed against them ground to a complete halt. Time Inc. reports that it hasn’t had an active libel suit for 11 months, prompting the early retirement of their libel lawyer. The New York Times reports that for the first time in 30 years the company doesn’t have a single libel lawsuit against it pending, and it hasn’t had one for more than a year. The Wall Street Journal also reports that libel lawsuits against it have fallen to almost nothing. A recent study estimated that the number of libel trials in the US in the 2000s was 50% less than in the 1980s. The anecdotal evidence gathered by this Observer article suggests that in the 2010s that decline may accelerate to close to 100% less than in the 1980s.

So why has the notoriously litigious American public lost their appetite for libel lawsuits? Is it simply that in today’s globalised world they have learned that any media company is likely to have a division in Europe that can be sued instead with a much higher chance of success?

Speaking to NPR’s On the Media on Friday, the article author John Koblin suggested this is likely not the cause. For one thing, it is still not always (or even often) the case that an American plaintiff will be able to find a way to challenge a paper in a British court. Instead, Koblin says, the cause is much more likely to be the proliferation of the internet and the loss of influence of the mainstream media.

Back in the 1980s, if a major newspaper lied about you it could do major damage to your reputation. Despite this damage, you would have had little opportunity to vindicate yourself outside of a courtroom. Today these two elements have changed dramatically. The big papers like the New York Times no longer have the impact they once had in setting the news agenda. And the average person now has a multitude of opportunities to get his or her side of the story out. They can write a blog, either on their own site or on another site like the Huffington post. They can send out an email or a press release. They can find lower-level sympathetic media to rebut the major newspaper’s piece. Or, like the recent case of British rapper M.I.A.’s crusade against a New York Times profile piece she didn’t like, you can tweet about it. M.I.A. not only tweeted her objections to the article profilicly, she also tweeted the reporter’s home phone number so her fans could call him up and also express their displeasure.

She also released the audio tapes of the interview with the reporter which she felt had been misconstrued. Through all of this, she has never even considered filing a lawsuit against the New York Times. After all, what for? She’s almost guaranteed to lose such a lawsuit, and she can get her version of the story out much faster and more effectively on the internet.

At the same time, these media outlets can now print a correction much faster than before (usually immediately on the web site, whereas it could have taken a month to get a correction printed in the old days). And if more people are reading articles online, that means the version they are reading can be easily changed before too many people have had a chance to read the incorrect version. The potential damage from an inaccuracy is greatly mitigated if most people are reading the article online, and it can be changed before too many people have looked at it.

Could Richard Jewell have tweeted his innocence?

Then again, it's hard to see how this rapid access to internet rebuttal would have helped poor Richard Jewell, the who was inaccurately accused by the US media of plotting the attempted bombing of the Olympic Stadium in Atlanta during the 1996 olympics. Jewell ended up getting huge payouts from big media companies like NBC, CNN and the New York Post for the defamation he had endured. Would have have been able to get the same vindication from just tweeting about his innocence? It's hard to say how this case would have unfolded today in the internet age. But most Americans never learned the truth, and right up to his death in 2007 people still thought Jewell planted the bomb himself even though this has been completely disproven since. The actual perpetrator was a far-right Christian extreemist, one of the may such home-grown terrorists the American public usually chooses to ignore.

Of course these ‘internet age’ explanations are more on the optimistic side, and there is another more depressing reality that could explain the decline. There is a possibility that lawyers at media organisations have managed to intimidate the editorial staff into never saying anything they could possibly be sued for. It’s no secret that US media organisations have majorly scaled back their hard-hitting investigative work as their budgets have dwindled into the red. One could hypothesize that as US media companies have fallen on hard financial times they have altered their news coverage in a way to make their lawyers happy and minimise the risk that they will be sued.

But while this is an interesting theory, I don’t buy it. A large proportion of these lawsuits has always revolved around celebrity news, and people in the entertainment industry have more often than not been the ones sitting in the plaintiffs chair. This is especially the case in the UK. Given that celebrity and tabloid news is the one area of journalism that is growing (and even exploding), and that the reporting on celebrities is growing ever more salacious and speculative, these libel cases should actually be growing.

I would be very curious to find out if the number of libel lawsuits in the UK is also decreasing – it’s something the Observer doesn’t appear to have looked into. I asked around a bit today and people have told me that, to their knowledge, there hasn't been any decline in the high number of libel suits in the UK. But the same ‘internet age’ factors are present here, so if the UK isn’t experiencing the same decline in lawsuits it may be safe to say that the US decline has more to do with legal factors than in cultural ones.

It remains to be seen how the new defamation law proposed by government is going to change the reality of libel in the UK (and, by extension, all of Europe). But it will be interesting to see how the new British law reflects the reality of the changed media landscape we live in today.

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