Forum shopping in defamation cases a threat to freedom of expression
European governments should agree a set of standard jurisdictional rules applicable to defamation claims to contain the risks created by so-called ‘libel tourism’, a committee of ministers has said.
In a declaration yesterday the Strasbourg-based Council of Europe’s Committee of Ministers warned that the rise in forum shopping in libel cases “challenges a number of essential rights protected by the convention”, including freedom of expression, the right to a fair trial an the right to privacy and family life.
Libel tourism “constitutes a serious threat to the freedom of expression and information”, the declaration states, before calling on governments to “provide appropriate legal guarantees against awards for damages and interest that are disproportionate to the actual injury”.
Ministers said national laws should be aligned with the case law of the Strasbourg court and promised that the Council of Europe would “pursue further standard-setting work with a view to providing guidance to member states”.
As an invitation to the 47 signatories to the European Convention on Human Rights, the declaration has no binding force but it acknowledges an issue raised in particular in the UK and could signal a wider policy adjustment both within the Council of Europe and at European Union level.
It could also be used persuasively in the Strasbourg court and even in national courts hearing arguments over libel tourism in cases such as that of Dr Peter Wilmshurst, sued in England by US company NMT Medical over comments made in the US, or the case brought by Baba Jeet Singh against journalist Hardeep Singh.
“In some cases a jurisdiction is chosen by a complainant because the legal fees of the applicant are contingent on the outcome (‘no win, no fee’) and/or because the mere cost of the procedure could have a dissuasive effect on the defendant,” the declaration says.
Ministers said anti-defamation laws pursued a legitimate aim when applied in line with the case law of the Strasbourg court. But, they said, “disproportionate application of these laws may have a chilling effect and restrict freedom of expression and information”.
The declaration continues: “In some cases libel tourism may be seen as the attempt to intimidate and silence critical or investigative media purely on the basis of the financial strength of the complainant.
“In other cases the very existence of small media providers has been affected by the deliberate use of disproportionate damages by claimants through libel tourism.”
The committee of ministers of the Council of Europe brings together heads of foreign affairs from all 47 signatories. William Hague is representing the UK.