Britain's Libel Laws: Malice Aforethought
Mihir Bose recalls a classic case highlighting the problems with Britain’s antiquated libel laws.
The decision to set up a royal charter to underpin Justice Leveson’s recommendations ovn regulating the press may or may not mean the end of press freedom in this country, 334 years after the expiry of the 1662 Licensing of the Press Act. But the Leveson report has done little to deal with a problem that has done much to discourage good journalism: Britain’s wretched libel laws.
Leveson did not look at the libel laws, arguing that Parliament was already debating a new bill. However he did comment on the cost of libel and proposed a free arbitration service for anyone who feels unfairly treated by the press. It would have the power to impose fines and compensation. That sounds worthy but the problem is the system, as now agreed by Parliament, may result in exactly the opposite of what Leveson intended. As Simon Jenkins has pointed out, it could result in a ’stampede for anyone – including lobbyists – trying to grab a compulsory correction plus a quick payoff ... Fines and compensation at the arbitration stage will put editors in thrall to chief executives and nervous publishers. Worse ensues if editors reject the new regulator and, because a matter of law is at stake, the case goes to a proper court. They there face punitive “million-pound” fines.’
The basic problem is that, while Leveson examined the burden libel laws impose on those not well off, he did not consider the reverse side of the cost coin. This favours the rich and the powerful, who are able to hire expensive libel lawyers and use their wealth to make sure the truth about them does not emerge.
London is currently the libel capital of the world. Its libel laws so frighten British publishers that books that are legitimately distributed in the US cannot be published here.
The US has an advantage over the UK in that its written constitution and bill of rights protects freedom of speech and the press. Over centuries the Americans have developed a system whereby, when it comes to libel, it is the poor and unknown who get protected. Americans believe that people in public office and those with wealth and power have the means to look after themselves and do not require additional statutory protection. This is achieved through a strong public interest defence. In America a public figure seeking to bring a libel action would have to prove that the journalist responsible was motivated by malice.
In the UK the defence has to prove the truth of what has been asserted while the person bringing the action is under no obligation to provide any evidence. How the absence of such a public interest defence affects our journalism can best be seen in how the rich and the famous have used British libel laws over the years.
The classic political case dates back to 1957, when a young Spectator journalist, Jenny Nicholson, wrote that on an Italian trip Aneurin Bevan, Richard Crossman and Morgan Phillips, at the time all grandees of the Labour Party, had drunk excessively. The words complained of were:
Messers Bevan, Morgan Phillips and Richard Crossman ... puzzled the Italians by their capacity to fill themselves like tanks with whisky and coffee, while they (because of their livers and also because they are abstemious by nature) were keeping going on mineral water and an occasional coffee. Although the Italians were never sure if the British delegation was sober, they always attributed to them an immense political acumen.
The three sued and won damages of £2,500 each, a considerable amount at the time. The incident has been much discussed since the three died. In April 1978 the Spectator published an article claiming that Crossman had boasted 15 years later that he and Bevan had been ‘pissed as newts’. Bevan’s biographer Michael Foot, who worshipped the man who gave us the National Health Service, vigorously denied Bevan had lied. However a more objective biographer, John Campbell, felt that Bevan was ‘vindictive’ in pursuing the action as it destroyed the career of Nicholson. It is hard to argue with Campbell’s conclusion that the words complained about were ‘not very terrible ... rather a compliment than a libel, one might have thought.’
The Bevan case involved a possible indiscretion by a famous man which could be said to have done no lasting damage except to Nicholson’s career. If Britain had a US-style public interest defence Bevan and co would have had to prove the journalist was motivated by malice. We would not have had to wait for their deaths for the truth to emerge.