(Originally posted, in slightly different form, at Canadian Lawyer)
Britain’s plaintiff-friendly libel laws are so infamous, they’ve even inspired a gag on South Park. In the notorious “Trapped in the Closet” episode, young Stan Marsh – thought to be the reincarnation of Scientology founder L. Ron Hubbard – announces that the “religion” is a giant scam. Scientologist Tom Cruise, furious at this gross insult to his faith, declares, “I’ll sue you – in England!“
The real-life punchine: “Trapped in the Closet” did not air on British television, because of the very real possibility that Cruise would successfully sue any broadcaster who tried.
A 2002 Vanity Fair article about a legendary New York restaurant, Elaine’s, was neither written by a Brit nor published in Britain, but that didn’t stop film director Roman Polanski from successfully suing the magazine for an allegedly defamatory anecdote included in the piece. (Supposedly, he was trying to pick up women at Elaine’s shortly after the murder of his wife, Sharon Tate. A jury found that this was devastating to Polanski’s reputation, which had been completely unsullied until the magazine came out.)
And then there’s Saudi banker Khalid bin Mahfouz, who used the British courts to sue American author Rachel Ehrenfeld over allegations in her book about terrorism financing – which had never been published in Britain. Or Holocaust-denying “historian” David Irving, who sued U.S. author Deborah Lipstadt for being labeled a Holocaust denier in one of her American-published books. Irving lost (in a court battle recounted in Lipstadt’s excellent book History on Trial) but it’s damning enough that the British legal system allowed him to think he had a case.
When it comes to the issue of defamation, Britain’s court system is overwhelmingly tilted toward plaintiffs, and in practice, these plaintiffs are usually much more wealthy and powerful than those who offended them so. Things hit rock bottom when corporations and football stars started obtaining “super-injuctions” which not only prevent anyone from spreading the allegedly slanderous allegations, but even revealing the existence of the injunction itself.
In You Can’t Read This Book, Nick Cohen, a columnist for Britain’s Guardian and Observer newspapers, identifies today’s major threats to freedom of expression. The British legal system, which affects defendants all over the world (like Ehrenfeld, whose connection to the UK was that a few British people bought her book through Amazon) is just one. The idea that religious believers have a “right not to be offended” is another.
When the Ayatollah Khomeini issued his 1988 fatwa calling for the murder of Salman Rushdie, the Western media and literati – with a few dishonourable exceptions – rushed to his defence. By 2006, when the Danish newspaper Jyllands-Posten came under fire for publishing cartoons of Mohammed, something had changed. While the cartoonists were placed until armed guard, and angry mobs around the world attacked anything that even looked Danish, the consensus seemed to be that Jyllands-Posten – and, by extension, Denmark – had been asking for it.
The internet is hailed as a magnificent tool for fighting censorship and government or corporate control, and Cohen concedes that, in some cases, it’s worked. Any Briton who wants to watch “Trapped in the Closet” or read about Roman Polanski’s dating adventures can easily find it online.
That’s a double-edged sword, of course: radicals and would-be censors have been adept at using the internet as well. For example, the story of the “blasphemous” Danish cartoons went viral, with more embellishments added the further it spread.
Moreever, Cohen makes a point that internet enthusiasts tend to forget: the web is available to the oppressors, too. Democracy activists may use Facebook and YouTube to spread their message, but dictators can use the same services to mass their supporters in response. The loathsome governments of Belarus and Iran use the web to track dissidents. China has built the world’s most advanced internet “firewall,” with the help of Western technology companies. Google withdrew from China rather than censor its search results. Its competitors have not.
I take issue with Cohen’s condemnation of the U.S. Supreme Court’s Citizens United decision – which, people tend to forget, came about after a political documentary wasn’t allowed to air on television. It’s too bad Canada didn’t rate so much as a mention, either, despite our own wrangling over the issues raised in You Can’t Read This Book. (Among Canadian media outlets, for example, only Ezra Levant’s Western Standard magazine published the Danish Mohammed cartoons – and promptly found itself on the wrong end of a human-rights complaint. I hear Levant doesn’t like to talk about it much.)
Otherwise, there is little to criticize about his important, enlightening and often infuriating book, which illustrates how freedom of expression remains under sustained attack in what should be the freest era in human history. I recommend that you read You Can’t Read This Book while you still can, especially before the British legal system gets its hands on it.