Revelations that the News of the World hacked into the voicemail of murdered teenager Milly Dowler have set off a firestorm of accusations leveled at the now defunct tabloid and its top brass. Given the slimy techniques used to violate the privacy of Dowler's family and potentially thousands of other victims, those involved at the paper have little moral ground to stand on. But, if they really wanted to, they may rationalize their actions by blaming the British legal system. Is it possible that the U.K.'s notoriously stringent libel laws actually encourage less-than-honest news gathering?
When it comes to libel defined under British law as "the publication of a statement which tends to lower a person in the estimation of right-thinking members of society generally" the stakes are very high. In 2006, the Sunday Times of London printed an article that falsely accused Elton John of behaving in an arrogant and self-important manner at his annual fundraising ball. Many American celebrities would have rolled their eyes and moved on. But British-born John sued for libel, claiming "considerable embarrassment and distress." He accepted an apology and undisclosed damages.
And given his personal track record with libel cases, he may have pocketed a pretty handsome sum. Back in 1987, the "Rocket Man" singer sued the Sun tabloid after it published false claims he had sex with male prostitutes. He walked away with one million pounds ($1.6 million) in damages and a front-page apology.
British laws are also notoriously strict. At present, anyone of any nationality can sue in British courts if they can prove they have a reputation to defend in the U.K. It doesn't matter how many people actually read the article in question or how briefly it appears in the country. In 2007, for instance, Cameron Diaz sued the National Enquirer in a London court after the paper falsely alleged she had an affair with a married man. Despite the fact only 279 British computers loaded the article on the U.S. tabloid's web site, the tabloid handed Diaz "substantial" damages in a settlement. "London is the libel capital of the world for very good reason," says Mark Stephens, a partner at London law firm Finers Stephens and Innocent. "It's almost an impossibility to lose a libel court case here."
Given that, you'd expect British tabloids to think twice before publishing allegations of adultery, drunken binges and other tittle-tattle. But as they prove on an almost daily basis, the exact opposite has happened. That's because defamation laws in the U.K. actually encourage some reporters to engage in underhanded tactics so they can prove their claims if and when questions of their veracity arise.
In the U.S., the First Amendment gives the media the right to publish whatever it sees fit. As such, the burden of proof rests with the plaintiff who must demonstrate that a story was factually wrong, and that it sullied his or her reputation. In Britain, on the other hand, the burden of proof lies with the defendant. The tabloid or magazine must prove the allegations are true, and the plaintiffs don't actually have to prove their reputations have been damaged. That's taken as fact. "[Newspapers] have to produce the evidence. But if you have to produce the evidence then frankly the best evidence is covert filming," Stephens says. "So what you've got is English libel law provoking journalists to record the best evidence." (Even so, journalists are afforded some degree of protection under the so-called "Reynolds defence," which frees them from blame if they can prove they had a duty to publish allegations in the name of the public interest even if they turn out to be false).
Covering their backs is probably why, in May 2010, the News of the World chose to record Sarah Ferguson accepting a bribe for access to her ex-husband Prince Andrew rather than merely alleging she did so. In some ways, English law discourages newspapers from defending themselves. If a newspaper defends its claims in court, it may be raising its legal liability: courts can consider publicity surrounding a case as an "aggravating factor."
And while tabloid bosses have learned to be wary of the likes of Elton John and Cameron Diaz, they're less concerned with publishing false allegations about the little guy. According to Stephens, it costs between £300,000 ($480,000) and £2 million ($3.2 million) to bring a libel case to court. "As a result of that, there's no legal aid available for the cases, so it is basically people who have almost limitless pockets who can afford to play this game," he says. "That's why it's a rich man's sport."