British libel law is called that, you'd think, because it applies in Britain. When it comes to libel, the U.K. is about the most plaintiff-friendly country in the world. British citizens enjoy no guaranteed freedom to write, to speak, let alone to publish. It's a free speech-free zone. But U.S. citizens escaped all that when they hammered out the First Amendment, right? It may be time to think again.
A Canadian firm has managed to use British law to shut down part of a U.S.-based website. The suit, which pitted Barrick Gold and Goldstrike Mines against Guardian Newspapers UK, was brought over "The Best Democracy Money Can Buy," a Nov. 26, 2000 column by Greg Palast that appeared in the Guardian's Sunday publication, the Observer. In it, Palast looked at the links between several corporations and the Bush family.
It was here that Palast first revealed that Florida Secretary of State Katherine Harris had contracted with a Republican-friendly data-collection company to tag over 50,000 voters (overwhelmingly African-American) as felons so that they might illegally be excised from the voting rolls.
Officially at least, that's not what got Palast in trouble. What Barrick took issue with was Palast's reporting on the company's incestuous relationship with the Bush family, and the allegations, backed by local witnesses and human rights investigators, that the gold ore Barrick profits from in Tanzania was freed up for exploitation thanks to the forced eviction of indigenous miners, at a cost of some 50 miners' lives.
Barrick denies culpability in any murders—they did not own the subsidiary at the time of the alleged massacre. The Tanzanian government has forbidden a formal investigation, stymieing Amnesty International's attempts to get at the truth.
Suing in British court, Barrick charged that the article had caused "great embarrassment and distress" to the company and its chair, Peter Munk, and that their reputations were "extremely seriously damaged." What may have been at the heart of their panic was the possibility of trouble from the World Bank, which has given them loans in Tanzania and elsewhere; bank regulations forbid lending to projects tainted by armed violence at any point.
In the United States, plaintiffs in most prominent libel cases have to show not only that a story is false, but prove that it was published with "reckless disregard for the truth." In the U.K., the person who brings the suit doesn't have to prove anything, and defendants bear the burden of proving their facts without re-using any of the evidence that's in dispute.
Barrick, the world's most valuable gold-mining company, demanded monetary damages and an injunction to prevent further dissemination of the article by the Guardian, "its directors, employees, agents or otherwise."
On July 31, the Guardian, which is run by a not-for-profit trust, settled in London's High Court, offering "sincere apologies," "a substantial sum" in damages and an agreement that it would delete the article from its electronic archives.
Palast was left with the choice of removing "The Best Democracy Money Can Buy" from his own, privately maintained U.S. site, or keeping it there at the risk of exposing the Guardian to aggravated damages.
"I am not at war with Barrick, I just would like the truth to come out," Palast told CBS.MarketWatch.com (8/1/01). "But I can't risk my paper's treasury with U.S. publication."
Thus, archaic British libel laws wielded by a massively wealthy corporation were able to intimidate a 21st Century, U.S.-based website. Palast has essentially been forced to delete all references to Barrick in his story online.
Palast's original report remains online—including at OnlineJournal.com —and he wrote a follow-up (MediaChannel.org, 3/1/01) wondering why a British reporter had to dig this stuff up about a U.S. election.
If Barrick wants to get it pulled off those sites, it will have to bring suit in U.S. courts. But the case reminds one how delicate the First Amendment is. Free speech is free only for those who can effectively fight their censors. Is it time for a new revolution? At gregpalast.com, you can read Palast's columns and see his BBC report, "Theft of the Presidency." Do it quick, and download it, so Bush's pals will have to take on all of us.
Laura Flanders, FAIR's former women's desk director, is a journalist who hosts the Laura Flanders Show. This column originally appeared as one of her daily columns on WorkingForChange.com.