Section 40 and the Free Press



Okay, that’s fairly precise and potentially inaccessible wording, so let me attempt to denote same thing without worrying about what I might connote. 

The Section 40 language in the UK is designed to force people entirely innocent of libel or slander – even by the UK’s ridiculous, anti-free speech standards – to pay the court costs of people who want to cause hurt to writers and other artists these vindictive people don’t like.

You can find the new language here. The justification for this legislation is the discovery that some journalists hacked the voice mail accounts of the people about whom they wrote. They (arguably) broke criminal law in doing so, and could be tried on criminal offenses. They (arguably) broke certain privacy laws as well, committing statutory torts in the process that in no way rely on defamation laws. It would be perfectly appropriate to make them defend those actions in a court action for damages. However, the entirely justified outrage against that behavior has literally nothing to do with whether innocent parties should pay the court costs of persons who might very well be using defamation laws to harass and punish authors of stories those jerks just don’t like. There is supposedly a safety valve here in that writers and media outlets will be immune to this provision if they pay membership dues to a government-approved content regulator and submit to that regulator’s authority. But this is as bad as being subject to the legal costs of jerks in many cases, and very much worse in some cases.

For small businesses and private individuals, the idea that anyone could sue you at any time and even if you win you pay their “necessary” legal costs (which can include such things as hotel bills for the accuser to stay near the court while proceedings are under way, and even air travel for an accuser or lawyer living outside the jurisdiction) is going to be the doomsday scenario. Large media companies, however, can afford to fight (or settle) a certain number of harassment cases a year. The doomsday scenario here is quite different: although most large companies will survive most efforts at legal harassment, and even will have the resources to prove that an accusation was legal harassment, forcing the accuser to forgo their bounty (or even pay up themselves), with rich jerks like Conrad Black around, you simply can’t guarantee you’ll survive. As a result, it will be a virtual necessity for such companies to submit to a government-approved regulator. And that is the doomsday scenario for these companies: a board of regulation has far more power to interfere with the speech of a member than the government could exercise directly. Yet the board of regulation is responsible to the government, and thus has every reason to stifle speech by those whom they supervise if that speech might annoy those to whom they themselves submit.

If this law has the effect that its government advocates intend, the ability to punish, say, the Belfast Telegraph, ITV or the Guardian is greatly increased for powerful members of the government while the threat from libel tourists is only held steady. If it doesn’t, well, government actors won’t have more access to punish media outlets only because the media have chosen to embrace even worse libel tourism problems than already exist in the UK.

All this may seem to US readers to be quite a bit of bother about something happening across a pond that is a bit too wide to skip a stone across. But what’s interesting to note for the USians among us is that Trump, who – if I understand correctly – has occasionally criticized one or more media outlets, has also praised UK’s defamation laws.

I don’t mean that he tweeted something negative about Tim O’Brien*2 and how he would have completely crushed O’Brien in a different legal forum. No, I mean that he stated, as a candidate for president speaking directly to media, that the US defamation laws should be different and should be closer to those of the UK. These statements (and others) were the inspiration for the remarkable statement by the international CPJ last October. Need I remind anyone that this was even before he took office and declared the media (collectively) to be an “enemy of the people”? If Trump could sue someone for defamation and make the person he sued pay for his pricey lawyers whether he won or lost, how frequently would he sue writers? As of this moment, many courts are ruling that just having your blog read somewhere is enough to create the difficult-to-rebut presumption that you should be made to defend yourself in a distant, even foreign, court.

Libel tourism as seen in the UK already deserves scorn. The UK wants to make this worse by mandating that the victims of legal harassment pay for your libel tourism. Trump thinks the UK system is a great one. Trump thinks that US media are enemies of the people.

…and so I ask, could US freedoms of speech and press possibly be in a more precarious position this soon after a peaceful transition of power?

Courts everywhere and the legal profession everywhere are going to have to come to grips that forgetting your book while on vacation doesn’t make the author of that book liable in local courts for defamation when it is read by a local person. Likewise, writing – even on the internet – in one jurisdiction does not make you liable for defamation everywhere a statement could possibly be read.

And the UK is going to have to repeal section 40.


Want to take action? Here are some things you can do:

  • Donate to the The Committee to Protect Journalists, “an independent, nonprofit organization that promotes press freedom worldwide. We defend the right of journalists to report the news without fear of reprisal” or publicize their efforts and help create pressure on governments such as those of the UK, the US, Cameroon, Eritrea and Turkey.
  • Contact your MP and MLA in Canada and the UK or congress member and Senators in the US. Tell them that current defamation law is unacceptable, the burden of proof should be shifted to (or remain with) accusers, and that laws that presume a tort occurred in a jurisdiction merely because reputation within a jurisdiction fluctuated is not enough to give a court authority over the actions of a person who lives and writes outside of that jurisdiction. If you’re comfortable with the legal language, make your case that courts should be presumed a forum non conveniens for any case involving writing or content accessible world-wide on the internet but created in a foreign jurisdiction.
  • Oppose the fuck out of Trump and the culture of hostility he creates when using “enemies of the people” and similar language and especially when he conflates being an “enemy of the people” with being an “enemy of Trump”. You can do this even in your personal conversations with friends.


*1 And the UK is not the only government criticized for ruling that libel happens wherever material is read, even if written and published within a single location entirely outside a court’s jurisdiction. Since once a libel action is filed in, say, Ontario, someone in the jurisdiction is guaranteed to read it, this presumption is dubious, to say the least. Nonetheless, we get Black v Breeden, 2010 ONCA 547 in Ontario asserting – at the appellate level – that libel occurs whenever and wherever something is read: “The motion judge did not err in finding that, although the defendants’ conduct occurred outside Ontario, they were connected to Ontario because it was reasonably foreseeable that the press releases posted to their company’s New York website would be downloaded and published in Ontario”. Madness.

*2 Tim O’Brien is an author and journalist who wrote about Trump. He published Trump’s net worth, as estimated by Trump’s own bankers. Trump sued him for libel because his reputation is connected to his net worth. (His theory is that by having millions of dollars, he proves himself a success, and that by proving himself a success he then earns more millions. Under this theory he makes even more money if people believe that his net worth is larger. Therefore if people publish his net worth, even accurately, and this number is less than the number that at least some people had previously believed, those people are guilty of depriving him of business income and thus of a recoverable injury to reputation.)

Trump lost, of course.


  1. EnlightenmentLiberal says


    This is concerning, but AFAIK practically all members of SCOTUS are really good on free speech law, and they would never let this slide in the US, and so this is not an issue that I’m particularly concerned about. Am I wrong concerning the opinion of SCOTUS concerning defamation law?


    Sorry I didn’t notice this at the time you made it, EL.

    As far as I know, the members of SCOTUS are better on free expression than the US populace itself. This has been true for quite a long while, and indeed the “liberal, activist” reputation the court first gained in the 1950s and 1960s was as much about decisions relating to free expression as its decisions relating to racial discrimination, its definition of interstate commerce, and its hints towards future constitutional gender protections.

    Although Brennan is not on the court anymore, his decision in Texas v Johnson was widely derided by the right wing and even by some Republicans considered moderate. Moreover, Kennedy wrote a concurrence in the case and he’s still on the court. So there’s reason to trust that the court would protect free expression against direct interference by the government. Laws against nude dancing, flag “desecration”, and many other forms of expression are unlikely to make a comeback.

    The problem here is that Section 40 isn’t a law regulating speech. All section 40 says is that the “loser pays” presumption in defamation cases is replaced with “author pays, win or lose”.

    SCOTUS has a decided bias toward corporations, and Section 40 on its face has no effect on large media corporations. While it now requires that those corporations join a professional association if they want the protection of “loser pays” those corporations can still keep loser pays if they choose. While submitting to the professional organization means allowing the professional organization de facto censorship power, in theory this is power is exercised by one private entity over another private entity pursuant to a contract into which they mutually entered, so there would be no direct First Amendment implications. The government isn’t doing the censoring. Private entities are making private choices about the legal risks they do and don’t want to take.

    And so it’s not clear if the pro-Corporate bias would or wouldn’t lead SCOTUS to reject author pays systems in defamation suits. They may believe that since it’s possible in theory (even though very difficult in practice) to overcome the author pays presumption when there is clear evidence that the plaintiff is intentionally using a lawsuit to cause harm rather than because the plaintiff honestly feels aggrieved, that congress is entitled to set the conditions it wishes on costs for defamation suit within a fairly wide range of discretion and that author pays except in extreme cases is within that range of discretion.

    Okay, so if it’s arguable that congress has that discretion (and it is arguable, at least), what exactly are the Free Speech implications?

    It’s that the government sets the rules on which professional regulatory bodies qualify for the purposes of the statute. You may find that even though you’re a dues paying member of some organization, that the organization isn’t recognized for the particular purpose of Section 40’s hypothetical US equivalent. So even though you thought you were covered by loser pays, it’s possible that in fact you’re a member of some organization, but not one that protects you against the author pays clause.

    And so the argument I’m trying to make is that the professional organization will be under pressure to issue sanctions, “fines”*3, and other penalties to prove that they are effective at doing the job – regulating the profession – that the statutory language expects that they will do. Otherwise they risk being seen as a non-regulating body and thus not a body that provides protection against author pays.

    Since cases involving prominent government figures are more likely to be noticed by the government*4, I believe the practical effect is that the professional organizations, unconstrained by the First Amendment, will feel more pressure to “do something” when confronted with edge cases involving governmental figures than involving average persons of no particular wealth or government position.

    The real danger here is that the government has in fact and in law avoided indulging in actual government censorship, and yet through the system a law like Section 40 creates, private citizens (in this case the governing board of the professional organization) have incentives to censor exactly the types of reporting or expression that the government itself would be most tempted to censor.

    Yes, SCOTUS is good on free expression. Yes, my best guess is that even the current crop of SCOTUS members think Hustler v Falwelll was rightly decided. But this case really isn’t about what expression is protected against prior restraint or even about what constitutes defamation.

    This is strictly limited to the constitutional implications of congress deciding who pays legal fees rather than the local court deciding legal fees. Think of it like mandatory minimum sentences – it’s clearly constitutional to jail or fine someone who has been properly convicted of a crime. Does the constitution care whether congress or the courts set the specific penalty? Does this federal power need to be exercised by the courts, or is it a power of the federal government that is subject to the lawmaking power of congress? In the same way, it is clearly constitutional for the federal government to provide a venue for defamation lawsuits to be decided. Since that’s constitutional, and as part of that constitutional authority the government has the power to determine which party pays the legal bills, does it matter to the constitution whether the trier of fact determines which party pays the legal bills, or can Congress determine that with duly passed (and not vetoed) legislation?

    I’m really not sure how SCOTUS would view a law that provides subtle incentives for private entities to censor each other. Even the fact that the indirect incentives will be not only to censor, but to censor in a manner that is appealing to those with governmental power, may not be direct enough to make SCOTUS believe that the First Amendment is infringed by a court policy instituting author pays unless author voluntarily submits to a private censoring body, in which case loser pays in defamation suits.

    Frankly, because of the rather novel nature of the structure here, I do think there is a risk. A huge risk? A small risk? I don’t know.

    But when I say that the risk is higher now than before because we have Trump in the White House arguing that we should be emulating UK laws, I’m arguing a comparison of risk not an absolute value. I’d be unqualified to state the risk of such a law being upheld is X% or Y%. But I don’t think there’s serious doubt that the chance of such a law being upheld is non-zero, and that the chance of that law being passed is greater now than it was last April. Thus I think the net risk is decidedly greater now.

    And, frankly, I think the risk is high enough to be scary.

    *1: according to scholars I’ve read and that I trust, but who may themselves have been giving a partial or biased picture & I’m not expert enough to know

    *2: which, in my opinion, is distinctly odd. Considering these artificial legal persons (which require a license to exist, remember) to be equal to natural persons (who don’t need a license to exist) in their rights is already bizarre. Yet the courts frequently better protect artificial legal persons than they do natural persons. Bizarre, I say.

    *3: Fines not in the statutory sense, but the way that the NFL or NBA “fines” players when they break the league’s rules. These are contractual forfeitures or penalties determined as needed by a method chosen by those entering the contract, but they are referred to as “fines” in common conversation. Even in court filings (when such forfeitures/penalties are contested in a breech-of-contract case alleging that the method or result breeched the contract) lawyers will frequently spell out exactly what the legal definition of the penalty is early in an argument and then include language like “hereinafter referred to as ‘fines’ “. If it’s good enough for them, I suppose it’s good enough for me.

    *4: which is, after all, made up of actual people not the least of which are those very prominent government figures

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