In a case which once again highlights the many problems with England’s libel law, Bahrain plans to sue the Independent newspaper for “orchestrating a defamatory and premeditated media campaign” against the country and its neighbour Saudi Arabia.
The paper’s long-standing Middle East correspondent, Robert Fisk, wrote a piece in which he said that the military trial of medical professionals was “utterly fraudulent”.
The country’s Information Affairs Authority (IAA) tweeted last night: “IAA takes legal action against columnist Robert Fisk and The Independent (UK) for repeated falsification of facts and publication of misinformation”.
This goes against the well-established principle that governments cannot sue for libel, which was established by the Derbyshire county council vs. Times newspapers case in 1993. In this case, the judges ruled that the council could not sue for libel, because a “democratically elected governmental body should be open to uninhibited public criticism”, and the threat of defamation actions would limit the freedom to express such criticism.
The law, then, is clear that domestic public authorities cannot sue for libel. Worryingly, however, ita is less clear on the position for foreign governments. This is a very ambiguous, unchartered area of law — it’s worth noting that the Derbyshire principle doesn’t apply to defamation by British public bodies in foreign jurisdictions. South Tyneside council is currently pursuing a defamation procedure in the foreign courts.
While it is possible that the High Court will strike out the Bahrain case early because of the potentially catastrophic effect on freedom of expression, individuals within the Bahraini government would still be able to pursue the case.
We have seen this principle in action with cases brought by Middle Eastern businessmen and Russian oligarchs. If they can show that they have a reputation in England and Wales, they can sue for libel in the High Court. The same would be true of government officials.
I’ve just spoken to Mike Harris of the Libel Reform Campaign, who stresses the risks:
If judges allow this case to proceed it will have a devastating effect on freedom of expression, both here and across the globe. The UN Human Rights committee has already singled out English libel law as having a chilling effect on freedom of expression. Our worry would be that if the government of Bahrain doesn’t bring the case, an individual within the government will bring the case forward. If they do, it’s very likely that this case will be heard — yet another example of the threat from libel tourism.
This is yet more proof — as if it was needed — that England’s libel law seriously needs reform.
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