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Ernest Miller Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School. Ernest Miller's blog postings can also be found @

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July 25, 2004

Claim of Libel Threat is Made - No One Bothers to Check if it is True

Posted by Ernest Miller

From my provincial American point of view, British libel law sucks. The First Amendment provides strong protection against libel charges by public figures, while British law seemingly favors such plaintiffs. So, you'll often hear about public figures suing for libel (or, more often, threatening to sue) in British courts instead of futilely going to American courts.

So it was with great interest that I read yesterday's New York Times' article about former President Clinton making changes to his autobiography, My Life, for publication in the UK (Changing His 'Life' to Suit British Law). Apparently, the British publisher feared a libel suit from Kenneth Starr, the special prosecutor and nemesis of then-President Clinton.

Strangely, though the article claimed that the publishers feared a lawsuit from Starr (now Dean of Pepperdine Univ. School of Law), there was no mention that either the British publishers or the New York Times reporter had spoken to Starr and asked his opinion of the matter. How hard would it have been for the NY Times reporter to get at least a "no comment" from Starr's office?

Comments (3) + TrackBacks (0) | Category: Freedom of Expression


1. Tim D on July 25, 2004 11:48 AM writes...

It's not just your provincial American point of view - there's a strong body of opinion here in the UK that our libel laws are broken, and that the balance needs to swing back towards the defendent or the party without the limitless financial resources.

Legal bills being what they are, that's often a disincentive to starting an action in the first place, which again skews the system in favour of those with the resources - it would be prohibitively expensive for me as a private citizen to sue for libel. And the chances of meaningful reform are pretty remote - it tends to be subsumed into the debate on our lack of a written constitution or effective freedom of information rules.

Although in our legal system's favour, we don't suffer from the same degree of ambulance chasing as the US does, nor does our executive have quite the same *cough* regard for things like the Geneva convention as does yours. You'd be forgiven for thinking at times that our leaders would be only too happy for matters to head that way, but that's another debate...

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2. EB on July 26, 2004 12:47 AM writes...

Uh --- what has the First Amendment got to do with this? It says "Congress shall make no law ...". It doesn't say that anyone can say whatever they like, whenever and wherever they like, true or not.

Both the US and the UK have libel laws which say that you can be sued if you make false statements about someone. It is a total defence if you can prove that what you said was true. So Clinton's lawyers think that Starr might win in a British court? They think that the "but it's true" defence will not hold water?

Yes, we have a big problem here. Top lawyers think that someone who says they have been unfairly criticised by a former President is more likely to be taken seriously by a foreign court than by a US one.

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3. Rolo Timassie on July 26, 2004 04:56 AM writes...

Because of the First Amendment, a public figure like Starr would have to prove not just that the statements were false and injurious, but that they were made with "actual malice" -- i.e., while knowing they were false and with an intent to harm, or with reckless disregard for the truth. That's a very high burden on the plaintiff and is rarely met, which means that, aside from a few tabloid suits, most of the energy in a US defamation case involving someone who has been in the news revolves around whether they were in fact a "public figure" or not. Britain does not have such a standard, so it is easier for public figures to bring suits, and sometimes difficult to prove whether the statements were true or not. (E.g., "So-and-so was part of a vast right-wing conspiracy." Hilary Clinton might think it's true -- but can she prove it in court?)

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