Americans watching Rupert Murdoch's News Corp. (NWS) implode might well ask themselves how the News of the World tabloid got so out of control. The answer can be found, in part, in the uniquely awful way British libel law is constructed: In its effort to quell criticism of the rich and powerful in the press, U.K. libel law perversely incentivizes reporters to go to extremes to get their stories.
The U.S. media is aggressive, but it isn't rabid in the way that the London press is. Today, for instance, the Guardian reported that two more Murdoch papers -- the Sunday Times and The Sun -- obtained former Prime Minister Gordon Brown's bank records and the medical records of his son, who has cystic fibrosis. News of the World reporters may have hacked into the voicemails of victims of the Sept. 11 attacks in New York. The new allegations come after Britain was appalled that News of the World reporters listened to the voicemails on murdered school girl Milly Dowling's phone, and then deleted some of them as her voicemail filled up.
English defamation law actually encourages reporters to do this sort of thing. In the U.S., the First Amendment gives the media the right to report any information it sees fit. If a person regards a story as libelous, they can sue. To be successful, the libeled person must prove that the story was factually wrong and that their reputation was damaged.
In the U.K., by comparison, the system has a Through-the-Looking Glass quality: everything is reversed. A person claiming libel need not prove their case, as the burden of proof lies with the defendant reporter. A plaintiff usually need not prove they were damaged, either, as the court will accept that damage occurred per se.
Proving a statement is true is a complete defense in the U.K. just as it is in the U.S., but if the defense fails the U.K. courts can take into account any evidence raised in that defense -- and the publicity it generated -- as aggravating factors. In other words, merely defending a story carries a high risk of increasing your legal liability.
U.K. libel law exists as an anomaly to the rest of British society, which has a robust tradition of free speech, satire and investigative journalism. It was coverage in London's Sunday Times that got thalidomide removed from the market internationally for causing birth defects, for instance.
Swingers on video
These two contradictory principles force reporters to go to bizarre lengths to get their scoops, and give the rich and powerful weird immunities in court. The best example of this is the Tommy Sheridan libel case, one of the strangest pieces of litigation ever seen in a British court. Unsurprisingly, it involves The News of the World.
In the case, the NOTW published a story that said Sheridan, a Scottish MP, had been seen at a swingers club. Sheridan sued. At trial, the paper produced 11 members of the Scottish Socialist Party's executive committee to testify they had heard Sheridan admit he had been to a swingers club. Sheridan fired his lawyers and conducted his own prosecution. He won. The NOTW later produced a videotape of Sheridan admitting he was a swinger, and Sheridan ended up serving a prison sentence for perjury.
It is not surprising, therefore, that NOTW reporters wanted to hear or record their sources' voicemails -- one of the few ways to make a story virtually incontrovertible is to get the source on tape.
None of this excuses the News of the World's behavior, of course. But it explains how former editor Rebekah Brooks may have deluded herself into thinking it was acceptable.
The unfortunate downside of the phone-hacking scandal
The worst part is that Britain was on the verge of reforming its libel laws to make them more like those in the U.S. The effort has still not passed parliament. There is currently little sympathy in the U.K. or in government for expanding the freedom of the press in the current climate.
The greatest fallout from the NOTW scandal may not be Murdoch's withdrawal of his bid for Sky Broadcasting or the rumored sale of his entire British newspaper division. Or even, if it comes to pass, an investigation of whether News Corp. violated the U.S. Foreign Corrupt Practices Act.
It may be that if parliament declines to reform the law because it does not want to be seen siding with the press, Murdoch's papers will have dealt the greatest blow to press freedom in the U.K. in decades.