Where there’s a court willing to entertain an action for libel, there’s an outside chance of winning one’s case. The Polanski verdict has reinforced the perception its open season for libel tourism in London. Thanks to misconceived perceptions of human rights legislation, it doesn’t matter if you’re a fugitive or prisoner, if you don’t like what’s printed then the UK courts will give you a chance to get back at the press.
The House of Lords paved the way for the Polanski case on the basis that access to justice and a right to fair trial should prevail over minor details such as the fact the plaintiff faced extradition for the statutory rape of an underage girl. We were told that human rights legislation directed us to support due process and irrespective of other offences, the right to a fair trial remains. Having reached their majority decision, the House of Lords may well sit back and say that the ensuing trial was, on the facts put forward in evidence, fair but in allowing the trial to proceed, both the process and the fairness have been called into question.
The European Convention on Human Rights – applied in the UK through the Human Rights Act 1998 – may well provide that there should be access to justice and a right to a fair trial but that same legislation does not decree in which jurisdiction that should be. Polanski is a French citizen and had access to the French legal system, which is also bound by the Human Rights Convention. Indeed, the French libel laws provide for a faster procedure with fines and a criminal conviction as penalty. What they don’t provide for however is a jury that will give you the benefit of the doubt. Residing in France and bringing an action against a US based publication Polanski had access to justice and a fair trial in France. So the only rationale for bringing his case in the UK was to secure, at the risk of the jury system, a ‘fairer’ trial in the UK.
Polanski’s strategy paid off and Vanity Fair publisher Conde Nast may well be considering an appeal but the real loser in this case is surely the integrity of a justice system that is, in libel terms, perpetuating its reputation as a tourist resort.
So those who maligned Saddam Hussein’s claim that he’d been ridiculed and libelled by the Sun’s publication of a picture of him in his underpants may yet see him proceed with his action. If Polanski can argue that infidelity and promiscuity should be no bar to being libelled for a claim based on the same, then surely Saddam should not see oppression and murder stand in the way of the humiliating sight of being seen in his pants.
The Polanski trial raises two questions for lawyers and the media in the UK, first, should we allow such cases. In Polanski the House of Lords said yes but earlier this year in the case of Dow Jones v Jameel the answer was no. In that case a limited number of people had accessed and read a potentially libellous report and it was held that to allow proceedings would have been an abuse of process.
Second, which is of equal interest and probably of greater application, where a plaintiff has a questionable reputation and openly admits to actions that are the basis for the sting in the story complained of, should they still be able to succeed with a claim, which while subjectively offensive, does not alter the objective perception of their character.
Polanski was open about his colourful sex life but was able to convince the jury that groping a girl after rather than before his wife’s funeral was acceptable within the context of his lifestyle while the suggestion it had taken place en-route to the funeral was libellous. Given the case was digging up events that took place 35 years ago, the question that needs to be asked is who was seeking absolution here, his conscience or his legal claim.
So back to Saddam. He’s facing charges for war crimes but he too is subject to the Geneva Convention on the treatment of prisoners and Human Rights legislation. He may be a dictator and responsible for countless deaths but on the basis of the Polanski case, does that mean he should be denied the opportunity of a mini-break at the High Court to slam the Sun for picturing him in his pants.