Denemarken wil ingrijpen EU in rechtzaak Mohammed cartoons (en)
EUOBSERVER / BRUSSELS - The Danish minister of justice has called on the European Commission to put a stop to a lawsuit by a Saudi lawyer who is using the UK's famously libel-happy courts to go after Danish newspapers for their publication of cartoons of the Prophet Mohammed.
"It's fundamentally reasonable that judgments in the EU can often be exercised across borders," the minister, Lars Barfoed, said according to the Berlingske Tidende newspaper.
"But it would be taking it to the extreme if a UK court could rule against the Danish media and then require compensation and court costs to be paid."
Celebrities, eastern European oligarchs and Gulf sheikhs regularly fly into London not to see the sights, but for a very different kind of vacation. The British capital has become the so-called "libel tourism" capital of the world.
In English and Welsh courts, the burden of proof is borne by the accused rather than the complainant, and as a result they have become the jurisdiction of choice for oligarchs and mafiosi, Saudi billionaires and even totalitarian governments.
Already in 2007, Icelandic investment bank Kaupthing sued Ekstra Bladet, another Danish newspaper, after a reporter wrote articles critical of the bank's handling of tax shelters for the wealthy. British courts accepted jurisdiction after the bank argued that London was a major banking centre and Kaupthing's chief executive resided in Britain.
On Monday, the Danish government said that they had had enough. Danish justice minister Lars Barfoed demanded that Brussels step in to prevent lawyer Faisal Yamani from suing the Danish papers for damages in British courts on behalf of 95,000 descendents of the prophet who say they and their faith have been defamed.
In August 2009, Mr Yamani asked 11 Danish publications to take down the Mohammed cartoons from their websites. While most papers have refused to do so, Politiken, the political weekly finally agreed to do so in February.
Rebuffed by the Danish publications, Mr Yamani has moved his fight to UK jurisdiction, where even publication on the internet in a foreign country in another language is considered as good as published domestically.
The EU's Rome II regulation, which entered into force in January last year, creates a harmonised set of rules within the bloc, governing which jurisdiction and which laws take precedence over another.
The regulation underwent a particularly knotty process of negotiations - in the words of one EU official "horrendously difficult" - between member states. One of the biggest sticking points was libel and defamation law.
In the end, as a result, it was left out of the regulation, meaning Mr Yamani is free to head to the British capital to try his luck with English judges.
Commission justice spokesman Matthew Newman told EUobserver that Brussels' hands are tied:
"The commission has no power to intervene in such an area. The matter is covered by national law. People are free to file lawsuits and Brussels is in no position to stop them. This is their right."
Mr Newman also said that the EU executive has not yet received any requests regarding the matter from the Danish government.
At the same time, Rome II is up for review in 2011 and defamation and libel issues may form part of the assessment. "Commissioner Reding recognises there is a problem here as it has regularly been raised by MEPs and member states and will carefully analyse the situation and take into account their concerns," Mr Newman said.
"This might well not be the end of the story."
One EU official admitted that the UK situation and libel tourism in general is "a big problem," telling this website: "The commission has been looking into this very issue for years. It's an ongoing issue and comes up all the time."
Ebbe Dal, president of the Danish national newspaper association told EUobserver that their lawyers and the Justice Ministry believes that the relevant piece of community law is Brussels I, not Rome II.
Rome II covers conflicts of a so-called non-contractual nature, while Brussels I regulates which courts have jurisdiction in legal disputes of a civil or commercial nature.
Mr Dal believes that the Danish request rests on firm ground. Explaining to this website why the issue concerns a commercial realm, he said: "When the question has been resolved by Danish courts and Danish newspapers are working under job conditions that Danish law gives them, it is very odd if others can then go to foreign courts and sue them for their journalism."
"The problem is not a problem for us alone, but for authors and the media in all member states. The UK must live up to EU standards and reconsider their legislation."
The British government for its part recognises there is a problem.
A Ministry of Justice spokesperson said: "The government is concerned about any potential chilling effect that our libel laws are having on freedom of speech. In response to the concerns that have been expressed, the justice secretary has set up a working group to examine a range of issues around the substantive law on libel."
In addition, three weeks ago the country's Culture, Media and Sport Select Committee published the report of its inquiry into libel, which criticised the current situation.
"The government is considering this report and the recommendations that it makes very carefully," the spokesperson said.