Council of Europe foreign ministers call for libel reform

Trickling back from the summer recess, European press freedom advocates and media lawyers are taking stock of facts and statements that went underreported during the holiday lull. And libel reform stands on top of the pile.  

On June 20 in a stunning verdict, two Italian journalists were sentenced by the Bolzano Court in Italy’s South Tyrol to four months in prison and fined 15,000 euros (US$18,500) for libel. Orfeo Donatini, a journalist with the daily newspaper Alto Adige, and Tiziano Marson, its former director, had been sued by local politician Sven Knoll for a 2008 article alleging that he had participated in a neo-Nazi gathering. According to freedom of expression group Article 19, Italy and Belarus are the only two European countries where journalists can still receive prison sentences for defamation.

Ironically, the verdict was issued a few days before the Committee of Ministers of the Strasbourg-based Council of Europe adopted a declaration denouncing the abuse of defamation laws. “Disproportionate application of these laws may have a chilling effect and restrict freedom of expression and information,” they said at a meeting on July 4 2012. “Governments should provide appropriate guarantees against awards for damages and interests that are disproportionate to the actual injury.”

The Committee of Ministers is the Council’s top executive body and is comprised of the foreign ministers of the 47 member states or their deputies. Although its declarations have no binding force, they are an indication of where the Council of Europe’s member states stand on an issue.

In its statement, the Committee of Ministers also impugned libel tourism, “a form of forum shopping when a complainant files a complaint with the court thought most likely to provide a favorable judgment and where it is easy to sue,” as the Committee stated. “In some cases a jurisdiction is chosen by a complainant because the legal fees of the applicant are contingent on the outcome, and/or because the mere cost of the procedure could have a dissuasive effect on the defendant. The improper use of these laws affects all those who wish to avail themselves of the freedom of expression.”

London has stood out for years as a destination for libel complainants. “London is a town called sue,” the Observer columnist Nick Cohen wrote in his 2012 book “You Can’t Read This Book.” He depicts a judicial system biased against freedom of expression, often in favor of well-heeled crooks, touchy celebrities, or bounty-hunting lawyers. “Contrary to natural justice and the Common Law, the burden of proof is on the defendant,” he writes. “A claimant does not have to prove that a writer has caused him to suffer financial loss or personal injury. In Britain, money buys silence: the cost of libel actions in England and Wales is 140 times higher than the European average.”

The Committee of Ministers statement appears to be an endorsement of the defamation reform bill currently going through the British legislative process. Although the text does not completely satisfy anti-libel campaigners–in a recent New York Times piece, U.S. author Rachel Ehrenfeld, who was a victim of libel tourism in London, referred to “Britain’s half-hearted bid to reform libel law“–the law is expected to considerably limit the attraction of London as a complainant’s destination. In order to reinforce its case, in particular “the general need for increased predictability of jurisdiction, especially for journalists, academics, and the media,” the Council of Europe’s Committee of Ministers referred in its statement to declarations by international freedom of expression advocates, in particular the 2011 Joint Declaration by the Special Rapporteurs of the United Nations, the Organization of American States, and the African Commission on Human Rights and Peoples’ Rights, as well as of the Organization for Security and Cooperation in Europe (OSCE) representative on freedom of the media.  

The July 4 statement is meant to have a similarly global reach. Although primarily addressed to the member states of the Council of Europe, the declaration can be used to frame the global debate on libel, an issue, as they write, “which has been exacerbated as a consequence of increased globalization and the persistent accessibility of content and archives on the Internet.”

In that context, the final passage of the defamation reform bill in London is seen by freedom of expression advocates as a milestone in their dogged struggle to make Europe unattractive for libel tourists and defamation peddlers. The U.K. campaigners are still fighting for amendments to the bill– in particular, to introduce a clause of public interest defense. The bill is currently in the House of Commons and should be sent to the House of Lords before being submitted for Royal Assent to become law.

(Reporting from Brussels)