Section 40 and the Free Press

Clearly bad actors are found in all fields of business or employment. I am even forced to concede that, on rare occasions, someone involved in my own prestigious field of blogging might misbehave. This fact is one of the underpinning justifications for the creation of boards of regulation for certain businesses and professions. In many cases, however, the regulators either don’t focus on the proper priorities or they are even created for entirely spurious reasons.

In the UK we’re seeing regulation of the field of journalism that displays gob-smacking amounts of each of these flaws. The UK has already been roundly criticized for inviting “libel tourism”,*1 but new legislation amending the Crime & Courts Act would create a strong presumption that media outlets will pay the court costs of both parties in any libel action. Because of the language that it amends, it’s fairly clear that this is supposed to undercut the presumption that when someone wrongly accuses you of libel and then loses in court, it’s unfair for the courts to order the innocent media outlet, author, or artist to pay the costs of the party that made the wrong accusation.

Okay, that’s fairly precise and potentially inaccessible wording, so let me attempt to denote same thing without worrying about what I might connote. 

The Section 40 language in the UK is designed to force people entirely innocent of libel or slander – even by the UK’s ridiculous, anti-free speech standards – to pay the court costs of people who want to cause hurt to writers and other artists these vindictive people don’t like.

You can find the new language here. The justification for this legislation is the discovery that some journalists hacked the voice mail accounts of the people about whom they wrote. They (arguably) broke criminal law in doing so, and could be tried on criminal offenses. They (arguably) broke certain privacy laws as well, committing statutory torts in the process that in no way rely on defamation laws. It would be perfectly appropriate to make them defend those actions in a court action for damages. However, the entirely justified outrage against that behavior has literally nothing to do with whether innocent parties should pay the court costs of persons who might very well be using defamation laws to harass and punish authors of stories those jerks just don’t like. There is supposedly a safety valve here in that writers and media outlets will be immune to this provision if they pay membership dues to a government-approved content regulator and submit to that regulator’s authority. But this is as bad as being subject to the legal costs of jerks in many cases, and very much worse in some cases.

For small businesses and private individuals, the idea that anyone could sue you at any time and even if you win you pay their “necessary” legal costs (which can include such things as hotel bills for the accuser to stay near the court while proceedings are under way, and even air travel for an accuser or lawyer living outside the jurisdiction) is going to be the doomsday scenario. Large media companies, however, can afford to fight (or settle) a certain number of harassment cases a year. The doomsday scenario here is quite different: although most large companies will survive most efforts at legal harassment, and even will have the resources to prove that an accusation was legal harassment, forcing the accuser to forgo their bounty (or even pay up themselves), with rich jerks like Conrad Black around, you simply can’t guarantee you’ll survive. As a result, it will be a virtual necessity for such companies to submit to a government-approved regulator. And that is the doomsday scenario for these companies: a board of regulation has far more power to interfere with the speech of a member than the government could exercise directly. Yet the board of regulation is responsible to the government, and thus has every reason to stifle speech by those whom they supervise if that speech might annoy those to whom they themselves submit.

If this law has the effect that its government advocates intend, the ability to punish, say, the Belfast Telegraph, ITV or the Guardian is greatly increased for powerful members of the government while the threat from libel tourists is only held steady. If it doesn’t, well, government actors won’t have more access to punish media outlets only because the media have chosen to embrace even worse libel tourism problems than already exist in the UK.

All this may seem to US readers to be quite a bit of bother about something happening across a pond that is a bit too wide to skip a stone across. But what’s interesting to note for the USians among us is that Trump, who – if I understand correctly – has occasionally criticized one or more media outlets, has also praised UK’s defamation laws.

I don’t mean that he tweeted something negative about Tim O’Brien*2 and how he would have completely crushed O’Brien in a different legal forum. No, I mean that he stated, as a candidate for president speaking directly to media, that the US defamation laws should be different and should be closer to those of the UK. These statements (and others) were the inspiration for the remarkable statement by the international CPJ last October. Need I remind anyone that this was even before he took office and declared the media (collectively) to be an “enemy of the people”? If Trump could sue someone for defamation and make the person he sued pay for his pricey lawyers whether he won or lost, how frequently would he sue writers? As of this moment, many courts are ruling that just having your blog read somewhere is enough to create the difficult-to-rebut presumption that you should be made to defend yourself in a distant, even foreign, court.

Libel tourism as seen in the UK already deserves scorn. The UK wants to make this worse by mandating that the victims of legal harassment pay for your libel tourism. Trump thinks the UK system is a great one. Trump thinks that US media are enemies of the people.

…and so I ask, could US freedoms of speech and press possibly be in a more precarious position this soon after a peaceful transition of power?

Courts everywhere and the legal profession everywhere are going to have to come to grips that forgetting your book while on vacation doesn’t make the author of that book liable in local courts for defamation when it is read by a local person. Likewise, writing – even on the internet – in one jurisdiction does not make you liable for defamation everywhere a statement could possibly be read.

And the UK is going to have to repeal section 40.


Want to take action? Here are some things you can do:

  • Donate to the The Committee to Protect Journalists, “an independent, nonprofit organization that promotes press freedom worldwide. We defend the right of journalists to report the news without fear of reprisal” or publicize their efforts and help create pressure on governments such as those of the UK, the US, Cameroon, Eritrea and Turkey.
  • Contact your MP and MLA in Canada and the UK or congress member and Senators in the US. Tell them that current defamation law is unacceptable, the burden of proof should be shifted to (or remain with) accusers, and that laws that presume a tort occurred in a jurisdiction merely because reputation within a jurisdiction fluctuated is not enough to give a court authority over the actions of a person who lives and writes outside of that jurisdiction. If you’re comfortable with the legal language, make your case that courts should be presumed a forum non conveniens for any case involving writing or content accessible world-wide on the internet but created in a foreign jurisdiction.
  • Oppose the fuck out of Trump and the culture of hostility he creates when using “enemies of the people” and similar language and especially when he conflates being an “enemy of the people” with being an “enemy of Trump”. You can do this even in your personal conversations with friends.


*1 And the UK is not the only government criticized for ruling that libel happens wherever material is read, even if written and published within a single location entirely outside a court’s jurisdiction. Since once a libel action is filed in, say, Ontario, someone in the jurisdiction is guaranteed to read it, this presumption is dubious, to say the least. Nonetheless, we get Black v Breeden, 2010 ONCA 547 in Ontario asserting – at the appellate level – that libel occurs whenever and wherever something is read: “The motion judge did not err in finding that, although the defendants’ conduct occurred outside Ontario, they were connected to Ontario because it was reasonably foreseeable that the press releases posted to their company’s New York website would be downloaded and published in Ontario”. Madness.

*2 Tim O’Brien is an author and journalist who wrote about Trump. He published Trump’s net worth, as estimated by Trump’s own bankers. Trump sued him for libel because his reputation is connected to his net worth. (His theory is that by having millions of dollars, he proves himself a success, and that by proving himself a success he then earns more millions. Under this theory he makes even more money if people believe that his net worth is larger. Therefore if people publish his net worth, even accurately, and this number is less than the number that at least some people had previously believed, those people are guilty of depriving him of business income and thus of a recoverable injury to reputation.)

Trump lost, of course.


  1. EnlightenmentLiberal says

    All this may seem to US readers to be quite a bit of bother about something happening across a pond that is a bit too wide to skip a stone across. But what’s interesting to note for the USians among us is that Trump, who – if I understand correctly – has occasionally criticized one or more media outlets, has also praised UK’s defamation laws.

    This is concerning, but AFAIK practically all members of SCOTUS are really good on free speech law, and they would never let this slide in the US, and so this is not an issue that I’m particularly concerned about. Am I wrong concerning the opinion of SCOTUS concerning defamation law?

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