As many a publisher knows, Britain's strict libel laws favor those who cry libel. Media organizations must leap over a near-impossible set of hurdles to defend themselves, and many end up self-censoring in order to avoid lawsuits. But this week, Britain's highest court took a major step towards reversing that system. U.K. media attorney Niri Shan talks to Brooke about legally loosening the libel leash.
BROOKE GLADSTONE: If you want to cry libel, you'd be better heard in England. There, when the media want to name names, they have to confront a strangulating set of legal conditions, so, rather than risk being sued, many choose to self-censor. But this week, that iron grip loosened a bit. The pivotal case -- Jameel v. Wall Street Journal Europe. It involved an article about how Saudi Arabia, at the request of the U.S., was monitoring the transactions of those suspected of funding terrorism. One business named in the paper sued, and a lower British court, quite typically, ruled in its favor, arguing that The Journal hadn't met the Reynolds test, a strict ten-point checklist that's nearly impossible to meet, especially on deadline. But on Wednesday, Britain's highest court decided that judges must also consider if a story was reported responsibly and if it served the public interest, and it reversed the lower court's decision. Niri Shan, a British media lawyer, says it was a giant leap forward for press freedom.
NIRI SHAN: And the way the courts interpreted that defense before was to apply a very rigorous ten-point test which media defendants had to comply with, and it was virtually impossible. What the court is saying is that the judges should realize that you can still be responsible in publishing a story and not comply with all the things that, before, the court was saying you had to comply with.
BROOKE GLADSTONE: You know, all these years, people who have wanted to sue for libel made an effort to find some grounds in Britain because it was so much more favorable to the plaintiff than in the United States. Now that virtually every publication is, in effect, global, because -
NIRI SHAN: Yes.
BROOKE GLADSTONE: - of the Internet, there was a cottage industry in these cases in Britain.
NIRI SHAN: There still is. I mean, this defense is limited to serious journalism on matters of public interest. It doesn't apply to celebrities-type stories, for example. What would change is if The Wall Street Journal, The New York Times were to publish, for example, a story on someone who's alleged to be a terrorist suspect after rigorous investigation, those articles are far more defendable in the U.K. than they were before.
BROOKE GLADSTONE: I was particularly interested in the remark by Lord Scott of Foscote, who was one of the judges on the panel, and he defended the right of news organizations to publish material deemed private by the government by saying, it is no part of the duty of the press to cooperate with any government, let alone foreign governments, whether friendly or not, in order to keep from the public information of public interest, the disclosure of which cannot be said to be damaging to national interest.
NIRI SHAN: Yes. One of the criticisms that a lot of people had over the initial judgment by the lower courts was that what the judge had said is that because the government had made the decision not to publish names, the newspapers should follow that lead. But I think there's a realization by the House of Lords, and more generally, that sometimes governments want to keep information from the public for their own self-interest, and it shouldn't be the government that should judge what information should come out to the public and what information should be kept from the public.
BROOKE GLADSTONE: It's a very important part, Niri. It also seems like an obvious point that would have come up in dozens of cases over the course of hundreds of years. Why is it being confronted now?
NIRI SHAN: Well, unfortunately, because litigation in the U.K. is so expensive, it would have taken The Wall Street Journal, the cost of this case going to the House of Lords, what I would have thought be approaching two million dollars. Unfortunately in the U.K., we don't have that many cases that go through our courts of this nature.
BROOKE GLADSTONE: Do you think people may have a little more courage to bring them to the highest court, even though the cases themselves are just as expensive as they ever were?
NIRI SHAN: I think it will encourage people to publish stories that they wouldn't otherwise have published, and I think it would also encourage publishers to take the risk of taking cases to higher courts, even if they lose at first instance. Hopefully, it would also discourage defendants who bring cases in this country, even though the substantive publication has been in the U.S.
BROOKE GLADSTONE: In other words, precisely the case at hand, Jameel versus The Wall Street Journal Europe.
NIRI SHAN: Yeah, absolutely. I think that the claimant knew that it would have no chance to succeed in an action in the U.S. because of the liberal laws of freedom of expression you have. So hopefully, this case will send a signal to those sort of claimants not to come to our courts in the U.K. But it won't discourage U.S. celebrities, for example, coming to our courts and suing over articles about their private life or matters of tittle-tattle, as we say, in the U.K.
BROOKE GLADSTONE: I'm not thinking of those stories, though. I'm thinking, in the U.S., stories about the archipelago of secret prisons and the tracking of the money of terrorists and Abu Ghraib and all the stories that have originated here that have attracted such harsh criticism. Do you see the two different national media going in two different directions, yours and ours?
NIRI SHAN: I think the way the public are in the U.K. is that they're very critical of U.S. government policy and U.K. government policy when it comes to the issues you've described, so the newspapers won't get condemned as being anti-patriotic by publishing those sort of stories. Really, the judgment call that the newspapers have to make in this country is not whether it's treason or anti-patriotic. It's whether they're going to be successfully sued or not. That's the bottom line that they think about.
BROOKE GLADSTONE: Niri, thank you very much.
NIRI SHAN: Thanks very much.
BROOKE GLADSTONE: Niri Shan is a U.K. media lawyer for the firm Taylor Wessing, where he has represented both British and American newspapers. [MUSIC UP AND UNDER]
BOB GARFIELD: Coming up, judicial rulings you can hum, and why Jon Stewart may be wrong about The Daily Show.
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