International Mediation – The New Libel Tourism?

Paul Tweed is a mediator and arbitrator with JAMS International who focuses on media law in England and Ireland.

For decades, U.S. nationals have taken advantage of the UK’s more favorable libel laws, dating back to Liberace’s famous case against the Daily Mirror on the basis of an article implying that he was a homosexual at a time when homosexuality was illegal.  However, in recent times, there has been a marked increase in the number of these claims for several reasons:

• The rapid expansion of the Internet has resulted in the extended publication internationally of established U.S. newspapers and periodicals, many of which can and are readily downloaded from within the UK and other European jurisdictions.
• There is an increasing importance of brand protection, with the credibility of the names of international personalities – their brands – being just as important to their commercial interests as to their professional achievements and personal reputation.
• There is the prohibitive nature of the challenging hurdles facing an individual wishing to bring an action in the United States.  Not only do the First Amendment and other protections leave an individual with the difficult burden of having to prove actual and specific malice on the part of the publisher, but the introduction by states such as California of SLAPP Motions, with the various costs and risks involved, is discouraging.

However, over the past year, there have been a number of positive indications from the UK and Irish governments that mediation should be encouraged as an alternative to expensive litigation in these types of matters. A number of high-profile cases have made the views of the judiciary crystal clear, along with the draft Irish Mediation Bill, and with an indication given that lawyers owe a duty of care to their clients to advise them of the option of mediation and to caution them on the likely consequences if they refuse.

With increasing pressure from the British Government and Judiciary for a reduction in escalating legal costs, it will be interesting to see whether these increasing calls for mediation as an alternative to litigation will be adhered to, particularly following from the recent European Directive, which is intended to encourage ADR across the board in all European states.

Perhaps surprisingly, it has until recently been the defendant publishers who have shown the most reluctance to engage in what is still regarded as very much a new and untested option of ADR.  The landscape is changing rapidly, primarily due to the dramatic revelations coming out of the Leveson Inquiry on a daily basis and the introduction of an experienced mediator to determine the level of damages in the less controversial of the phone hacking cases.  Perhaps this new direction in strategy on the part of News Corporation will encourage others to follow suit with regard to other forms of media litigation.

Accordingly, we may yet see London, Dublin and Belfast becoming the go-to places for their mediation facilities for Americans seeking justice on European shores.