Beleaguered Home Secretary Jacqui Smith is facing yet another attack this morning after including American “Shock Jock” Michael Savage in a list of 16 people banned from entering Britain on the grounds that they would express views which stir up hatred, serious criminal activity or violence in the UK. The publication and naming of the majority of the list (with some exclusions on the grounds that revealing their names would not be in the public interest) follows a review of the rules governing entry into the UK and the introduction of a new power to exclude entry where those on the list could not prove that they would not “stir up tension” in the United Kingdom.
Justifying her publication of the list, the Home Secretary told GMTV that: “Coming to this country is a privilege. If you can’t live by the rules that we live by, the standards and the values that we live by, we should exclude you from this country and, what’s more, now we will make public those people that we have excluded.”
Savage, an extremely popular and controversial radio host, was included on the “least wanted list” on the grounds that he is “considered to be engaging in unacceptable behaviour by seeking to provoke others to serious criminal acts and fostering hatred which might lead to inter-community violence”. Savage has told the American Press that he has been “defamed and endangered” by Jacqui Smith’s decision and now planned to sue the UK Government for Defamation. In an interview with the San Francisco Chronicle, Savage said:
“This lunatic . . . is linking me up with Nazi skinheads who are killing people in Russia….she’s putting me in a league with Hamas murderers who kill Jews on buses. “I have never advocated violence. I’ve been on the air 15 years. My views may be inflammatory, but they’re not violent in any way.”.
To be liable for defamation in the UK, a claimant must show that a statement was made about them which was repeated (or “published”) to a third party, and causing reasonable and respectable people to think less of them. It’s all a question of respect and damage to reputation – the test which the Court usually applies is to look at whether the Claimant has been “exposed to hatred, contempt or ridicule” or “shunned and avoided”.
Savage is a “shock jock” in the truest sense of the phrase. He has said that he never plans to visit the UK, and it’s probably fair to say that this incident may raise his standing in the minds of his listeners or increase his profile, both within the US and internationally. However, he has already noted that UK libel laws are more draconian than in other countries, especially the US.
The Government has been working very hard to deter cases where celebrities or other public figures choose to sue in the UK rather than abroad as it may have a negative effect on the freedom of the press, as well as abusing the Court system.
The problem here is that we currently have a line of cases dating back to a decision in 2005 which saw boxing mogul Don King being granted leave to sue for libel in the UK over supposedly defamatory comments made against him by a US website. Under US Law, King’s claim would have failed, but in the UK it remains perfectly acceptable to sue over harm to his reputation in this Country.
Defamation law is meant to strike a balance between a right to protect an individual’s reputation and freedom of speech. The Government may choose to run a number of defences to Savage’s claim, first among which is “justification” on the basis that Savage’s description on the list and the comments made by Jacqui Smith were true. However, given as we have no real evidence of him causing problems in the UK or even causing real unrest in the US, this would be difficult to prove.
They could also consider the defence of fair comment on a matter of public interest, however for this to work the statement need to express an opinion rather than the mere fact that Savage is on the list. The Government would probably lean more towards the defence of Privilege lean towards as they could claim that even if the statement made about Savage was defamatory, he should be barred from suing the Government on the grounds that they are under a moral, legal and social duty to tell the public about the names on the list in the interests of national security or a similarly grey area of public policy.
It’ll be very interesting to see how this case pans out as it could set a very dangerous precedent if more “name and shame” tactics are used by the Government but I think it’s safe to say that Savage will be facing an uphill battle if he does follow through with his claim. For now, unless he really does plan to come to the UK or his reputation really is in tatters, he’s probably better served keeping his listeners happy rather than his Lawyers.