Saturday, 20 December 2008

Libel and the loudmouths

My attention has been brought by the great Mr Leg-Iron to some recent complaints of Labour MPs about the courts upholding the law. The instance he mentioned concerns the law of defamation. Some MPs seem to believe it should only be applied in certain circumstances, I fail to see how that is a complaint about the courts rather than about the laws MPs have the power to change, but we can leave that observation to one side for the moment because I want to look at defamation more generally.

The current law is, in essence, quite simple. If you publish an untrue statement about someone he has a claim against you provided your statement is more than mere insults, it must involve a slur on his reputation. Obvious examples include allegations of theft, adultery or corruption. The thing you allege need not be a crime but it must be behaviour which people generally would consider improper. There are numerous qualifications to this general definition, particularly when it comes to spoken defamation (slander) but also in relation to written defamation (libel), but it will do for present purposes.

Personal reputation is what other people think of you. It is a rather nebulous concept which is more important to some people than to others and is certainly of great importance in some fields of work although sometimes a bad reputation can be far more lucrative than a good one. Many a lawyer or accountant with a reputation for being less than honest can pick up a lot of business precisely because their clients want someone clever and crooked to get them out of trouble. Nonetheless, the vast majority and lawyers and accountants would consider allegations of dishonesty to be potentially damaging to their careers and might feel it necessary to sue to put the record straight.

It is entirely understandable why someone might want to sue where something written about him could ruin his career but it is a dangerous path to take unless you are absolutely squeaky clean. In a well publicised case a few years ago a solicitor was accused of using confidential information for his own benefit in a commercial transaction, a very serious allegation against someone under a strict duty of confidentiality. In fact he did not use confidential information but he was competing against a client in the transaction, which is also a serious breach of his professional duties. Although what was written about him was untrue he lost the case because he had acted in breach of his professional duties albeit in a different way from that alleged against him. His high reputation was damaged but because he had acted improperly that high reputation was not justified and the false statement only lowered his reputation to where it should have been anyway. It cost him a lot of money because he had to pay the other side's legal costs as well as his own.

Another risk exemplified by that case arises from the fact that court proceedings are public and can be reported in the newspapers. The original allegation against the solicitor was made in writing to only a few people whereas the debunking of his reputation made it into all the serious newspapers and guaranteed that any harm he might suffer was magnified a thousand times. And there we face another of the great quirks of defamation law - how often does a false allegation of misbehaviour actually harm someone? It goes without saying that it will hurt their feelings and might cause some people they deal with to be reticent to put business their way, however I find it hard to believe that anything other than very serious allegations will cause more than a minor blip to any career. The solicitor I mentioned is one of the country's leading experts in a complex area of law and still sustains a large and successful practice today because he is very good at a very difficult job. There is no outward sign that the lowering of his reputation has had any lasting impact on his career. That case, like many (but not all) defamation cases, seems to provide proof of the old saying "sticks and stones may break my bones but words will never hurt me".

One of the most curious aspects of English defamation law is that it is up to the jury (where there is one, the parties can agree trial by judge alone) to decide how much should be paid by way of compensation for loss of reputation. This is separate from the question whether any financial loss resulted. Where money was actually lost the defendant will be ordered to pay that sum in compensation. In addition he will have to pay for what is, in essence, hurt feelings. While you might get £5,000 for a badly broken arm or £50,000 for losing a leg, someone who harms your reputation can be ordered to pay far more even though the defamation has not cost you a penny. Most high awards by juries appear to reflect their disapproval of the defendant's conduct much more than a genuine attempt to quantify what the defamed person has suffered. By all means give full compensation where actual financial loss can be proved, but for loss of reputation alone a limit of £2,000 would be more than adequate.

The case that troubled MPs recently concerned a Saudi businessman who was accused in a book of giving financial support to terrorists. The book was published in America (where the Constitution guarantees the right of free speech and defamation actions are rare) and the defamed person lives in Saudi Arabia. It is no surprise to find members of the current governing party complaining about the English courts applying established English law to a proven defamation occurring in England, I gave up pretending we could expect sense from them several years ago. Their specific complaint in this case, as reported by The Times, was of "libel tourism" and Soviet-style censorship, in other words that someone chose to sue in the English courts because other countries have different laws and he might not have succeeded there. It is difficult to know how accurate the report is because the reporter tells of the judge "fining" the publishers when he did not such thing - a fine is imposed for breach of the criminal law, a judge or jury in a civil defamation case can award damages but cannot impose a fine. It is also reported that the book was not sold in this country, which might well be true, but unless a defamation has occurred in this country the English court has no power to do anything about it, so there must have been some distribution of the false statement within England.

Be that as it may, the substance of what a junior minister in the Justice Department and a rent-a-quote back bencher are reported to have said is deeply worrying and tells us more about their ignorance of the law than it does about any deficiency in that law. "Libel tourism" is all about people suing in this country because our law gives them a remedy they might not get elsewhere. If MPs don't like it they have to change the law. Neither lawyers nor judges can refuse to apply the law once a case has been brought, so rather than accusing those two groups of being at fault the MPs should seek to persuade Parliament. The allegation of Soviet-style censorship is quite breathtakingly and staggeringly stupid. English libel law imposes censorship in one sense only. It has the power to prevent lies being repeated. It does not have the power to prevent the truth being repeated, however unpalatable that truth might be. Print the truth and you are fine, print lies and you risk being required to withdraw your book from sale in its current form. There is nothing in that process to justify hysterical squeals about Soviet or any other style of censorship.

How curious it is that senior members of the Labour Party want to prevent foreign victims of lies having access to our courts while also wanting to clamp down on blogs that criticise their policies. No, it's not curious at all. Just another example of a party that's been in government so long that it will say anything at any time to grab a headline or stifle debate in a desperate attempt to cling to power. There will be many more examples of this sort of contradictory loud-mouthing in the months before the general election.


Pogo said...

"English libel law imposes censorship in one sense only. It has the power to prevent lies being repeated. It does not have the power to prevent the truth being repeated, however unpalatable that truth might be."

In theory maybe...

However, the late and unlamented Robert Maxwell proved quite comprehensively that having (apparently) deep pockets and access to heavyweight lawyers who had more regard for fees than justice could easily stifle the truth.

TheFatBigot said...

Undoubtedly true Mr Pogo. Such individuals are very few and far between but their existence is an argument for simply abolishing the law of defamation entirely or limiting claims to instances where it can be proved that the untrue statement was published maliciously.