It's A Small World After All: Emerging Protections For The U.S. Media Sued In England

Co-written by Robert D. Balin

What do the New York celebrity ex-wife of a British rock star, the Greek prime minister, an American action movie hero, a Russian businessman turned high-powered government official, a Texas oil tycoon and a California techie all have in common? None of them lived in London, but they all chose to bring libel suits there. It wasn't the weather that attracted them but, rather, British libel laws very favorable to plaintiffs. Two new developments, one in the British courts and one in U.S. courts, have now made the British option much less desirable to out-of-towners seeking to take advantage of British libel law. In three recent cases, British courts have dismissed libel actions brought by foreigners on the ground that England was not a suitable forum. In two other libel cases which went to trial in England resulting in plaintiffs' verdicts, two state courts and one federal court in the U.S. have refused to enforce British judgments against American-based defendants, finding them to be "repugnant" to U.S. or state public policy.

There is common ground between American and British libel law, as one would expect since U.S. law is derived from and owes many of its principles to British common law. Both bodies of law require that a sued-upon statement be harmful to reputation and be published to a third party. Both recognize a defense of fair comment, although the British version can be defeated by malice, and both provide for trial by jury of libel claims. But there the similarities end.

While both American and British law preclude liability if the statement is true, American law places the burden of proof on the plaintiff to show the statement is false. By contrast, British law imposes the burden on defendant to prove truth or "justification" and permits aggravated damages if defendant tries but fails. This is then compounded by the award of legal fees and costs to the prevailing party. The difference is more than academic. Consider, for example, the case Davis Wright Tremaine litigated on behalf of "60 Minutes" regarding the allegation that Alar, the additive to apples, is a carcinogen. The Washington apple-growers ultimately lost because they could not prove false this assertion, which was more in the nature of scientific theory than incontrovertible fact. In that case, the burden of proof on truth proved dispositive.1

If the media defendant in a British libel case cannot prove the statement to be true, it loses. This rule of strict liability was rejected by our Supreme Court in New York Times v. Sullivan,2 to allow some "breathing room" for the inevitable inadvertent errors and to encourage vigorous debate. Under the First Amendment holding of Sullivan, a public figure or public official must prove not only that the statement was a defamatory and false statement of fact, but that the defendant published it with actual malice-that is, with knowledge of falsity or serious doubts as to the truth. The private figure in the U.S. also does not prevail merely by proving factual error; he too must prove fault but by the less demanding test of negligence (or gross negligence in some jurisdictions) measured by reasonable journalistic standards. Proposals to adopt the actual malice requirement for public officials have been repeatedly rejected in Britain.3 In the U.S., both the burden of proof on falsity and the requirement of fault are compelled by the First Amendment, which has no analog in Britain.

For these reasons, well-heeled libel plaintiffs not infrequently bring their suits in the British courts, even when they do not reside there and even when the publication has only minimal circulation in Britain. The late Robert Maxwell, for example, sued The New Republic in Britain, where less than 135 copies of the publication circulated. In this age of electronic and satellite communications, where there are literally no national borders, electronic publishers in the U.S. may be subject to jurisdiction in London without ever having left home.

British Courts Reject Forum Shopping

Now the U.S. media are beginning to fight back, and have found British courts willing to help turn back this blatant forum shopping. In the first of three recent cases, plaintiff Berezovsky, a Russian businessman-turned-high government official, sued Forbes magazine over an article accusing him of being a mobster. Forbes, described by the presiding judge as "an American magazine written in American style,"4 has a British circulation of 2,000, out of a total of 785,000...