Britain's Libel Laws Finally Join the Modern Age

Big news out of London yesterday-- big news for journalists there and all over the world. The Law Lords, Britain's highest court in the House of Lords, ruled that newspaper publishers, editors and reporters who are sued for libel are not required to prove the truth of the allegations contained in their pieces. The decision represents a sea-change in British law and brings that country's libel standard much closer to where ours is.

Not surprisingly, British newspapers were delighted with the news. Me? I was impressed most by the language used by the judges.
According to The New York Times' take on the story: "Another member of the panel, Lord Scott of Foscote, defended the right of news organizations to publish material deemed private by the government. '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 interests,' he wrote. A third member, Baroness Hale of Richmond, wrote, 'We need more such serious journalism in this country, and our defamation law should encourage rather than discourage it.' Amen.

By Andrew Cohen |  October 12, 2006; 9:00 AM ET
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I too am so relieved. I can rest assured that no newspaper will take the care and the time to check their facts and be truthful. Now all papers can be just like the New York Times which publishes its version of the world: "truthiness"

We can also rest assured the newspapers and other reporters will only bow down to totalitarian regimes and terrorist organizations that are willing to kill them.

Posted by: Constitutionalist | October 12, 2006 02:39 PM

At long last! For far too long only the political satirists in Britain have been able to say in public what many people already knew in private. In recent years a number of politicians have successfully sued newspapers for libel in cases where it later turned out that the newspapers had printed the truth. Since the loser in British court cases pays the legal costs of the winner, the effect has been chilling. My only concern: Will British political satire lose its excellence as a result? - Writing from Yorkshire

Posted by: C Harlen | October 13, 2006 05:25 AM

I wonder if the English Court considered the US Constitution and SCOTUS decisions on free speech, free press in coming to its decision? Justice Scalia, please note the two-way street that may be involved: the US may be able to learn from other nations AND vice versa.

Posted by: Shag from Brookline | October 13, 2006 06:16 AM

You might note that the British do not have a written constitution as they are a monarchy. Even this late in the day, their sovereignty flows from the King (or right now the Queen), and not from the People. So their laws are based on the words and deeds of the Queen in counsel (Parliament); this is why the House of Lords is can interpret and apply rules of law as they (and presumably the Queen) see fit.

We here in the United States of America have a written Constitution and soverignty flows from the People and the member states of the Union. (See, the preamble that starts off "We the People...") It is the acts of the People through their representatives in Congress and the member States, in keeping with the Constitution and treaties ratified Constitutionally that determine Law in these United States, not the words and deeds of a others, outside our system.

Congress is welcome to uptake the ideas of foreign nations, as our the member states. But the ideas and laws of foreign nations cannot be come "law" in America outside of the representative process. Whose idea of law would you choose to honor? N. Korea? Peoples Republic of China? Afghanistan? Isreal? France? The United Nations? Who can decide what should and should not apply? Judges on the Supreme Court (I am sure you believe Scalia would go for the N. Korea approach), or duly elected representatives of the People in Congress?

Posted by: Constitutionalist | October 13, 2006 08:47 AM

Actually, Constitutionalist, the Brits do not lack a codified constitution because they are a monarchy--there are constitutional monarchies with written constitutions (e.g., Japan, Norway, the Netherlands)--but because of their perhaps peculiar history and traditions.

Also, the Queen-in-Counsel refers to the monarch's exercise of executive function, through the Privy Counsel, not the exercise of legislative function, though Parliament, which is the Queen-in-Parliament.

You might note, in turn, that the idea of sovereignty flowing from the monarch is a fiction. The UK has a very moden parliamentary democracy in which the role of the monarch is completely ceremonial and symbolic.

But I think you're spot on about how foreign law can't become incorporated in US law without being internalized in our own system. Of course, there is the concept that the judiciary in interpreting laws can recognize appropriate international law as part of US law.

Posted by: Just sayin' | October 13, 2006 09:26 AM

Yes, thank you Just Sayin', I did over-simplify because the structure of English government is more complex than ours, and more complex than I care to remember. But I do not think I misrepresented the character of a constitutional tradition consisting of written laws and judicial decisions that centralizes power in a single institution (Parliament's two houses) with no checks and balances. Ultimately the same Lords who decide final appeals in cases also write the laws.

The United States's governmantal structure is different, founded in the Constitution, and shares the burdens of governance differently. There is nothing wrong with paying attention to and following innovation world-wide, but it is and should remain the responsibility of the People through Congress and the individual state legislatures to adopt those changes. And that is not an over-simplification, it is my core and motivating belief.

Posted by: Constitutionalist | October 13, 2006 01:45 PM


The subject of the post regards libel laws in England. The US Constitution in the First Amendment does not reference libel law. In New York Times v. Sullivan, the Supreme Court applied the First Amendment speech and press clauses in a libel case, in effect modifying common law libel law. I don't know if you (or originalists) agree or disagree with NYT v. Sullivan. But the decision has stood the test of time in the US. Perhaps you favor the old English libel law just changed, I don't know. But perhaps England came into the 20th century early in this 21st century, perhaps somewhat influenced by NYT v. Sullivan, even though England lacks a written constitution. (England has long been considered as having an unwritten constitution.) I am not suggesting that the SCOTUS should adopt laws of other nations, or vice versa; rather, sometimes a court may get some good ideas from other courts in applying its own laws, regardless of what Justice Scalia may think.

Posted by: Shag from Brookline | October 13, 2006 05:00 PM

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