Privacy Laws Pose New Threat to Free Speech

January 19, 2016, 12:00 PM UTC
Paul Weller 2015
LONDON, ENGLAND - SEPTEMBER 17: Paul Weller on stage during the John Varvatos, luxury menswear designer, in conversation with musician Paul Weller, on topics including rock and roll and style on September 17, 2015 in London, England. (Photo by David M. Benett/Dave Benett / Getty Images for John Varvatos)
Photograph by David M. Benett — Getty Images for John Varvatos

It was a powerful tool while it lasted. For years, wealthy people the world over could drag critics – including authors, publishers and media outlets – into London courtrooms and browbeat them with libel lawsuits. No matter if the defendants had no connection to England: the courts opened their doors all the same, and granted often dubious defamation awards to “libel tourists” from Europe, Russia and the Middle East. The winners would then collect by presenting the English judgment in foreign courtrooms, including American ones.

Today, the worst of libel tourism is over. Lawmakers moved to stop it after outcries over free expression. But now a new type of muzzling may be on the march in the form of aggressive privacy rulings, which some fear are breeding a new type of censorship tourist.

Privacy damages for children

Mark Stephens, a renowned London-based media lawyer whose clients have included everyone from news giant Dow Jones to whistle blower Julian Assange, spent years battling libel tourism in UK courtrooms. In recent years, Stephens has noticed a trend: libel cases have fallen off, only to be replaced with a surge in “privacy” cases.

“We’ve had about four libel charges, and something like 40 or 45 privacy trials … Now every letter of action [threatening a lawsuit] comes with a privacy and data claim,” said Stephens, during a recent lecture on free speech at Columbia University. He added that those figures are “the tip of the iceberg” since defendants, in the vast majority of cases, will settle in order to avoid enormous legal fees.

To show how the law is changing, Stephens pointed to the case of Paul Weller, a 57-year-old UK rock singer, who won a recent landmark ruling in London that was informed by European norms of privacy.

The case involved Weller suing the London-based tabloid, Mail Online, for publishing photos on the internet showing Weller, his teenage daughter and 10-month-old twins outdoors in Los Angeles. A British judge awarded damages, including money for each of the infants, even though the photos only showed them in a carriage from a distance.

While the incident took place in the U.S., where such photographs are lawful, the London court forced the Mail Online to pay because it had violated the Data Protection Act, a U.K. law derived from a European Union directive. After the Mail Online lost an appeal last year, its lawyers warned that UK judges had created an unprecedented “image right” that would have “far-reaching adverse effects on the freedom of the media in this jurisdiction.”

The Weller children aren’t the only ones to break new legal ground based on European ideas of privacy law. In 2008, the son of Harry Potter author JK Rowling won a landmark ruling over an unauthorized photograph showing him as a toddler in a baby buggy.

Is this trend of awarding new privacy rights to celebrity children a good thing? Parents on both sides of the Atlantic may well think so since these kids don’t choose to live in the public eye. On the other hand, the law in English-speaking countries has for centuries allowed the media to report and record what transpires in public places; the introduction of Continental privacy norms would inhibit this right.

Expanding privacy laws in the name of children could also bring unintended consequences. Namely, it could open the door to the sort of chilling forces that fueled libel tourism.

From Defamation into Privacy

English libel cases have a special sting because the law makes it easy for a plaintiff to win. But that’s not the only reason. Libel law is also a powerful weapon because the UK system can force a loser to pay the winner’s attorney’s fees, potentially forcing the loser to fork over hundreds of thousands of pounds in legal fees.

Now, lawyers are warning this one-two libel punch – a plaintiff-friendly venue plus heavy fees for the loser – is set to migrate into the realm of privacy law.

“In all probability, you’ll see a surge in this stuff as firms migrate away from defamation and into privacy,” warned Stuart Karle, another veteran media lawyer who spoke at the Columbia event. “Privacy now is extremely attractive to run the same argument.”

Karle fears the same judges and lawyers who made the UK such an attractive destination for libel tourism are poised to do the same for privacy claims. The upshot could be a new legal cudgel that lets celebrities and other powerful people force media defendants into settlements.

David Sherborne, a UK media lawyer who has represented many celebrities including Weller, did not respond to a request for comment about the free speech implications of the privacy rulings.

Currently, the risk of a privacy law sprawl looms large because, at the moment, UK law is amorphous. According to Stephens, UK judges are devising ways of increasing the bite of privacy rulings – such as by letting plaintiffs use a single privacy incident to pursue a variety of different legal claims. And, like libel law before it, the British judgments could reach beyond national borders.

“Combustible Material is There”

In the case of the U.S., the arrival of “privacy tourists” brandishing UK judgements would revive unpleasant memories for publishers and media companies. These include a Saudi billionaire’s 2007 libel lawsuit against New York author Rachel Ehrenfeld over her book, Funding Evil. Even though the book was not published in the UK, the Saudi persuaded a London court to hear the case by purchasing a few copies on the internet – and subsequently won a default judgment against Ehrenfeld.

That incident helped spur U.S. lawmakers to put a stop to libel tourism with the SPEECH Act, which Congress passed by a unanimous vote and which President Obama signed into law in 2010. Under the terms of the new law, foreign libel judgments can’t be enforced in the U.S. unless they pass First Amendment muster. This effectively slammed the door on the libel tourists, and eventually prodded British lawmakers into reforming a defamation industry that many regarded as a stain on the country’s legal system.

So will the SPEECH Act keep away privacy tourists too? Media lawyer Robert Balin, a partner at Davis Wright Tremaine in New York, says the answer is uncertain.

See Also: Google Faces Hard Choices as Judges Grow Bold on Censorship

Like others, Balin shares the concern that UK lawyers are repackaging libel claims as privacy cases. To stop plaintiffs turning up with such cases in the U.S., Balin points to text in the SPEECH Act that also bars American courts from enforcing judgments based on claims “similar” to libel, if they would violate the First Amendment. But he notes the provision has not been tested in courts, and that it’s unclear if judges would treat it as broad enough to block the new UK privacy cases.

Balin added that he would not be surprised if someone decides to launch a London privacy case with the aim of using it to pull down images that would otherwise be considered lawful here.

“The combustible materials and the matches are there. We’ll see if it catches fire.”

The Columbia discussion was hosted by the Poliak Center for the Study of First Amendment Issues, and also featured ABC lawyer John Zucker. You can see a video of it here.

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