Bunfights

Those of us who seek to publish uncomfortable facts about our fellow human beings are constantly being plagued by the law of libel. That it is a law which most of us detest and fear should not, however, blind us to the fact that we could not do without it altogether. If no one had any redress for libel no one would ever believe a word we wrote. I cannot count the number of letters I get from people who have read my column in the Mirror and say, ‘We simply couldn’t believe your article about X and wonder if you could tell us whether he is suing you’ –or something of the sort. When I worked for Private Eye, this reaction was even more common. Private Eye, one of the very few genuinely free publications in the country, is always falling foul of the law of libel, but if there were no law of libel at all, no one would believe a word in Private Eye, and as a result some of the great scandals of modern times would not have been exposed.

If we need a libel law, then, why do we hate it so? One reason is that the only people who are certain to benefit from the British libel law are the lawyers. I have never been in a libel action without at some time in the proceedings feeling a sense of solidarity with the man who is suing me against the great army of lawyers whose pockets will be full whatever the result. No one has made more money from this branch of the law than Peter Carter-Ruck, so I opened his book eagerly to find some answers to questions which have always puzzled me. What, to start with, is the philosophy, the raison d’être of the law of libel? Mr Carter-Ruck answers the question with a quotation from Shakespeare. I print it in full, though Mr Carter-Ruck only manages a bit of it:

The purest treasure mortal times afford
Is spotless reputation; that away,
Men are but gilded loam or painted clay.
A jewel in a ten-times barred-up chest
Is a bold spirit in a loyal breast.
Mine honour is my life; both grow in one:
Take honour from me, and my life is done.

Shakespeare puts this stale little homily in the mouth of the Duke of Norfolk in the ridiculous first scene of Richard II where two young lords spoiling for a fight, Norfolk and Bolingbroke, swagger before their monarch. No one explains the reason for their quarrel. Norfolk, rather like some of Mr Carter-Ruck’s clients, seems to be an over-sensitive upper-class twit. The King has some good advice:

Forget, forgive, conclude and be agreed;
Our doctors say this is no month to bleed.

That would have been a futile course for a libel lawyer, however, since there would have been no damages, perhaps even no costs.

The Norfolk/Carter-Ruck philosophy of libel goes something like this. People have a right to redress for injury to their reputation just as they have a right to redress for physical injury, or damage to their property. ‘Spotless reputation’, they would argue, is as valuable to men and women as their life, limbs or property, and should be protected by the law in the same way. But here at once is the problem. Damage to body or property can be assessed. It may be difficult to assess the real damage to a person who loses a leg, or in the ‘pain and suffering’ (a legal expression) of someone laid low, say, by asbestosis, but judges and lawyers can have a stab at it by reckoning, for instance, how many days’ work have been lost. Sometimes damages can be assessed in the same way in libel cases. Someone might lose his job as a result of a false statement. That lost job can be assessed in money. He might lose the chance of promotion or transfer – that again would be assessable. If a defamed tenant were evicted, his loss would be pecuniary and could therefore be determined. In some countries’ libel laws, and in the British law of slander (which is defamation by the spoken word – libel is published or broadcast), the plaintiff has to prove ‘special damage’ that is, a specific loss in money terms – before he or she can be awarded money damages. There are, however, no such rules for assessing damages for libel. Libel damages are unlimited, uncontrolled by any rule or even rough estimate. Juries may award any sum they like to compensate for the wounded reputation of the plaintiff. There seems to be no real reason for this, except that those with reputations to be damaged are inclined to be rich; and that rich people are inclined to value everything, especially their reputation, in money.

The farce which is the British libel law stems exclusively from this obsession with money compensation. Jeffrey Archer, at the time deputy chairman of the Tory Party, admitted that he’d paid £2000 to a prostitute but denied he’d had sex with her. The jury believed him and awarded him half a million pounds in damages against the Star, which had dared to suggest (by the faintest innuendo) a sexual liaison. A British Naval officer got £460,000 from a London jury for a libel in a Greek paper whose London circulation was a few hundred copies. Elton John got a million pounds from the Sun, which had suggested he’d had a relationship with a rent boy. The wife of the Yorkshire Ripper was awarded £600,000 for an article, published six years before she issued her writ, which suggested that she had taken money from a newspaper. Some concluded from these cases that juries had gone mad, or had become drunk with their power to award unlimited damages. The editor of Private Eye made the point that the wife of the Ripper was getting more for the damage done to her reputation by a small paragraph in a satirical fortnightly than the families of the Ripper victims had been awarded for the murder of their daughters.

Were the juries really assessing the damage to these plaintiffs? Did they really believe Jeffrey Archer had suffered to the tune of half a million pounds? Could anyone suggest that Elton John, however false the Sun’s allegations, was a million pounds worse off because of them? Not at all. The jury were plainly using their power in order to punish the media for printing false information. They were soaking rich publications for abusing the power of the press. They were saying, in effect, that free speech was not a licence to lie, and that the papers should pay dearly for their transgressions. Many people, if not most, agreed. The real menace behind all these cases, and of the libel law in general, went unnoticed. For though no one cares very much if the Sun or the Star has to fork out millions for telling lies, the effect of these gigantic awards is that editors and proprietors pay far more attention to their lawyers’ warnings about the consequences of publishing ‘risky’ material. Far more than ever before, the ‘risky’ material never sees the light of day.

There is another wretched consequence of these high damages. They make it even more difficult to defend a libel action. The simplest defence against a libel is that the contested words are true. The illusion still persists, however, that ‘the greater the truth the greater the libel.’ That is nonsense. It is a hangover from criminal libel, which made it a crime to publish anything which might cause a breach of the peace. Since the test was whether or not a breach of the peace would be caused (and since a breach of the peace was more likely if the allegation was true) it was no defence to a criminal libel to plead that the words were true. Fortunately, criminal libel is now almost defunct. In civil libel cases, it is an absolute defence to plead that the words are true. The problem, however, is to prove the truth in a court of law. This is always much more difficult than it sounds. True facts laid out in a special way with special emphasis may carry an innuendo which is not true. Many libel actions, therefore, are fought out on the meaning of the words as a ‘reasonable person’ would take them. The recent spate of absurdly high damages has made the task of proving the truth far more difficult. I illustrate the point with an unreported case in my recent experience.

On a trip to Northern Ireland in 1989, I met and interviewed one of the boys who had been abused by the people in charge of the Kincora Boys’ Home in Belfast in the Sixties and Seventies. When the Kincora scandal was finally uncovered in 1980 (thanks to an Irish newspaper, not the Belfast Corporation, or the Health Boards which ran the home), some of the boys who had been abused sued the relevant Health Board for damages. The boy I interviewed had been (quite properly) advised by his lawyers to settle for £5000. The barrister who advised him was Robert McCartney QC. Mr McCartney had recently won a celebrated libel action in Belfast against the Sunday World. The paper had alleged, falsely, that Mr McCartney and another barrister had had a row in a café over the last available cream bun. This report, the barristers alleged, had lowered their standing in the eyes of the community by suggesting that they could have acted in public in so undignified a manner. The jury agreed, and awarded the barristers £50,000 damages each. When I came back to London, I went to Private Eye, where the editor, Ian Hislop, was still groaning under the blow of the £600,000 damages awarded to Mrs Sutcliffe. Together, we constructed a careful paragraph comparing the damages awarded to Robert McCartney QC in the cream-bun case and the damages awarded to his clients who had been abused for twenty years in a publicly-owned children’s home. The point of the paragraph was not to criticise Mr McCartney but to compare the sort of damages handed out by juries in libel cases with the sort of damages people can expect to collect for child abuse.

Mr McCartney sued Private Eye, complaining that the article suggested that he had not done his best by his clients in the Kincora case. Everything written in the Private Eye paragraph – all the fact and figures, that is – was true. Ian Hislop therefore decided to fight the action, and, after the usual interminable and expensive preliminaries, the two of us went to Belfast to do so. My point was going to be that I had written and intended no criticism of Mr McCartney’s efforts in the Kincora case. I thought I could prove it: in my book on the Colin Wallace case I had referred glowingly to McCartney’s vigorous performance on behalf of his two abused clients at the Hughes inquiry into the scandal. We were being sued for an innuendo which was not stated and was not intended.

The case in court lasted only a day. Two matters were debated between the lawyers, in the absence of the jury. The first was that because the article had referred to Mr McCartney as a Unionist (he is a former Unionist MP in Northern Ireland) it was possible to deduce from it that he had taken part in a politicians’ cover-up of the Kincora scandal. His lawyers had amassed an enormous pile of evidence to show that several newspapers in the early Eighties had suggested such a political cover-up and that therefore an article written in 1989 about a lawyer in the Kincora case which referred to that lawyer as a Unionist could be taken to implicate him in the cover-up. This seemed to me quite fantastic – no reference to any such cover-up was made in the article. But the judge said he would allow this suggestion to go to the jury. The judge was then asked if he would allow Mr McCartney to say in the witness box that he had given the bulk of his cream-bun damages to charity. Our lawyer protested. If the jury knew that McCartney gave his damages to charity, that could well dispose of any inhibitions they might have about awarding him as high a sum as they liked. But the judge overruled him.

We had gone to Belfast determined to defend a paragraph whose facts were true. We were prepared, of course, to lose the case and be liable for reasonable damages, but we were then faced with the possibility that the jury might find against us on something we had not intended to imply, and would assess their damages on the basis that the plaintiff would probably give them all to charity. Quite ludicrous sums, far beyond the capacity of Private Eye, were on the cards. In these circumstances it was quite impossible to go on fighting the case. A settlement was reached, as they say, at the door of the court, and Mr McCartney got another £30,000 to compensate him for his damaged reputation. The lawyers pocketed about £60,000, and for a nasty month or two the financial stability of the magazine was once again imperilled. Not only are all sorts of things now not being published which people ought to know, but even when they are published, and are true, they are becoming impossible to defend.

These ‘high-damage’ cases have led to some concern among libel lawyers, who worry that their lucrative trade might be threatened by the ridicule and contempt in which the law has caused itself to be held. They cast about for a reform which will keep the gravy train running without it running into the sand. The most popular suggestion is that libel damages should be fixed by judges – or, at the very least, that the Court of Appeal should have the power to vary damages where they consider a jury award to be either excessive or inadequate. The proposal that the Court of Appeal should be allowed to intervene was first made (by lawyers) in 1965, repeated again (by lawyers on the Faulks Committee) in 1975; and Mr Peter Carter-Ruck, who seldom errs on the side of modesty, tells us he was making the same proposal ‘before anyone else’.

It is a lawyer’s permanent illusion that judges are likely to be fairer than juries. The truth is almost invariably the exact opposite. If judges were to replace juries either at the first instance or at the Court of Appeal, the certain result would be that the libel law would become even more unfair, even harder on the poor publication or the poor plaintiff, than it is at the moment. The same goes for all the other ‘reforms’ put forward by judicial inquiries into libel and championed by Peter Carter-Ruck. Some propose, for instance, that the law of slander should be amalgamated with the law of libel. That could be a huge step forward. Slander damages, as we’ve seen, can only be awarded if the plaintiff can show he’s lost some material or pecuniary advantage as a result of what was said about him. If that were applied to libel, all these excessive damages would go out of the window. But no. The lawyers, to keep their trade, want slander incorporated into libel. They want unlimited damages for reputation in slander as well as libel. The cash registers in the Temple ring with joy at the very thought.

Every other reform proposed by Mr Carter-Ruck would have the same effect. He is shocked by the fact that there is no such thing as a posthumous libel. He wants the estate of dead people to be able to sue for a libel on the reputation of the corpse for at least five years after it has been laid to rest. It’s difficult to see, on his logic, why we should stop there. Why not fifty or a hundred years – or for ever? Finally, Mr Carter-Ruck proposes legal aid for people suing for libel. Again, the chief effect of this would be a huge increase in the libel law industry. All these ‘reforms’ miss the point. The reform which would reduce the law of libel to some form of fairness would be a ‘special damage’ law limiting all money damages to the money losses which a plaintiff can show he or she has suffered as a result of the libel. This would do away at once with at least half the libel cases now fought, which are started only in order to make some tax-free money for the plaintiff. It would also remove from journalists and publications the awful censorship which the libel law now imposes.

Is this not special pleading on behalf of journalists? Would such a change in the law not let the gutter press off the hook and remove the only means by which society (in the form of outraged juries) can now control and reprove the mass media? Not at all. What makes a libel offensive is not so much the damage it does to this or that individual but the fact that it does so falsely. I remember once listening to a Fleet Street editor wailing on about the enormities of Private Eye. ‘They suggested I was using my position to seduce young women,’ he said. ‘It’s completely untrue – it’s so damaging.’ My reply was that it would have been much more damaging had it been true. The truth can be terribly damaging (far more damaging than lies), but no one as far as I know has ever suggested a clause in the libel law which penalises writers who tell the truth. A fair and powerful libel law must deal with and deter the publishing of lies. For it to be effective it needs an accessible and inexpensive tribunal to which people can complain when false statements are made about them. The tribunal should have the power to provide a remedy where such a remedy would be most effective in the publication concerned. It should be able to impose upon such publications corrections and apologies of much greater size and prominence than the original mistake. Once the Sun and the Star were forced to print their corrections in headlines, their false headlines would soon cease. Journalists would feel far less free to write lies and make up quotes if they knew that they would be exposed and pilloried in their own paper for doing so. As things stand, the libel law does not correct mistakes, and by and large does not (except in rare cases) restore falsely-, injured reputations. If libel became a law for correcting falsehoods and exposing malice, reputations could be quickly restored and the offending newspapers properly punished.

Such a remedy is anathema to libel lawyers, because it would remove them from the fatuous glitter of High Court actions and demote them to arguing about truth in front of humble tribunals. One happy result of this might be that libel lawyers as a breed would lose some of the pomposity and self-regard which ooze from every page of this rambling, ill-written farrago of reminiscences drawn from cases in which Mr Carter-Ruck’s clients are paragons of virtue and dignity and his opponents are either left-wing troublemakers or irresponsible publishers (like the BBC). There are endless pages of transcripts of hoary old libel cases, most of which have been written about far more eloquently and intelligently elsewhere. There is not a single piece of new information on matters about which Carter-Ruck knows a lot, such as the true nature of the Goldsmith Foundation, which assists worthy litigants to sue for libel. Instead, the reminiscences are padded out with indescribably boring accounts of Mr Carter-Ruck’s exploits on the high seas, of the public school he founded, of his villa in Spain, his retreat in Scotland or his heroic efforts to save his clients from paying too much tax.