Galloway 1, free speech 0

Ex-Labour MP George Galloway, who successfully won his libel battle against the Daily Telegraph on 2 December 2004, proclaimed in his customarily flamboyant style that the allegations made by the paper – that he was in the secret pay of Saddam Hussein – were ‘a dagger, a sword, right through the heart of my political life’. After the ruling he declared: ‘I am glad and somewhat humbled to discover that there is at least one corner of the English field which remains uncorrupted and independent, and that corner is in this courtroom.’

It is a sad state of affairs when anti-war campaigners honour the High Court as one of the sole remaining beacons of light. Court 13 – where Galloway’s case was heard – is the place where in July 1987 the now disgraced peer Jeffrey Archer won his £500,000 libel damages from the Daily Star, over the allegations that he had had sex with a prostitute. Later convicted of perjury and perverting the course of justice, Archer was forced to repay the Daily Star. It was also in Court 13 that high drama and farce were played out between Mohamed al-Fayed and Neil Hamilton – described during the proceedings as the meeting of a ‘habitual liar’ and a ‘politician on the make’.

Galloway’s uncorrupted and independent ‘corner of the English field’ has won London the reputation as the libel capital of the world, often being dubbed ‘a town called Sue’. This is not to imply that the Daily Telegraph was right to malign Galloway. But a victory in the High Court is unlikely to mend wounds from the sword ‘through the heart of [his] political life’. Everybody knows that London’s High Court is the place where chancers come to launder their reputation – if they have enough money to pay the extortionate lawyers’ fees, that is.

The case may be seen by some as the victory of a poor and hounded individual against a large and powerful news corporation. But it can also be seen as a further nail in the coffin of press freedom. The Daily Telegraph did not defend the truth of its claims, relying instead on what is known as the Reynolds defence of qualified privilege – which recognises that on certain occasions a person should be free to publish defamatory matter, provided he acts in good faith, even though it may prove to be false.

This defence was used by Times Newspapers Limited in the case brought by the former Irish Taoiseach (prime minister) Albert Reynolds. The House of Lords ruled that newspapers that have made defamatory statements – even if they are untrue – should be protected if the information published is so important that the interest in publishing it outweighs safeguarding a person’s reputation. ‘The press discharges vital functions as a bloodhound as well as a watchdog’, the Lords ruled. ‘The court should be slow to conclude that a publication was not in the public interest and, therefore, the public had no right to know, especially when the information is in the field of political discussion. Any lingering doubts should be resolved in favour of publication.’

The ruling was seen by many as a victory for press freedom. But, as was argued on spiked at the time, England still has a long way to go to catch up with the law as it exists in most other Western countries. In England, libel law rests on the assumption that claimants have an ‘unblemished record’, and claimants only need to show that the words complained of are capable of lowering their standing in the estimation of ‘right-thinking members of the public’.

Those who sue do not need to prove that their reputation has been damaged, nor do they have to prove that the words complained of are untrue. The assumption is that the defamatory statement is false, with the burden falling on the defendant to prove it is true. This reversal of the burden of proof – with the defendant pretty much guilty until he proves his innocence – is almost unique to English libel law.

The defendant does not only have to defend the literal meaning of what has been said, but also possible interpretations. So arguing that a particular defamatory meaning was not intended will not hold up as a defence in court. Claimants can – and often do – succeed in attributing defamatory meanings to statements that the defendant never intended to be defamatory.

In the USA, the landmark ruling in New York Times v Sullivan in 1964 created a ‘public figure defence’, making it extremely difficult for public individuals to sue for libel. To succeed in a libel case, claimants would need to show that not only were the allegations untrue but that they were made maliciously or with reckless disregard to the truth.

The US Supreme Court observed that in free debate erroneous statements are inevitable and must be protected – otherwise free expression would not have the ‘breathing space’ it needs, and media self-censorship would become the norm. The fear of not being able to prove the truth of the published words in court – and the recognition of the expense and resources required to do so – would limit public debate.

In 1997, the US Maryland State Appeals Court refused to recognise an English ruling, arguing that the principles of English libel law failed to measure up to basic human rights standards and were ‘repugnant’ to the First Amendment ideal of free speech.

By broadening the scope of qualified privilege it was assumed that English law was finally moving towards incorporating a ‘public interest’ defence. But this doesn’t seem to be the case. When looking at the criteria that publications will have to meet in order to qualify for the protection, it becomes clear that this is only a very small step in that direction.

In the Reynolds ruling, the Lords suggested a list of at least 10 factors that should be taken into account to determine whether journalists and editors acted responsibly, including: the seriousness of the allegation; the nature of the information, and the extent to which the subject matter is a matter of public concern; the source of the information; the steps taken to verify the information; the urgency of the matter; whether comment was sought from the claimant or whether the article contained the gist of the claimant’s side of the story; and the tone of the article.

In short, the price of broadening ‘qualified privilege’ is to submit editorial judgements to judicial scrutiny. Justice Eady said the Daily Telegraph didn’t give Galloway a ‘fair or reasonable opportunity’ to investigate or respond to the allegations and had no ‘social or moral duty’ to publish the articles. The Telegraph was stuck between a rock and a hard place. Unable to verify its allegations, it argued that it had acted ‘responsibly’ and ‘in the public interest’. Given the number of hoops it would have to jump through to be deemed to have acted ‘responsibly’, and the vituperative nature of the articles it published, the Telegraph was clearly in a no-win situation. You don’t need to have any sympathy with the pro-war views of that newspaper to see that there is a problem with this.

Newspapers should have the right to publish abusive articles about politicians – who, after all, are at the centre of public life, and have recourse, more than anybody else, to dispute unfair allegations made against them. When it is left to judges, however ‘uncorrupted’ and ‘independent’ in Galloway’s eyes, to make decisions about the ‘social and moral duty’ of the media and balance the interests of freedom of speech and the protection of reputation, democracy will inevitably suffer. In practice, safeguarding a person’s reputation invariably outweighs the right to publish.

It is almost impossible for editors to know at the time of publication whether a particular story is likely to be protected or not, leaving little protection for the open exchange of ideas.

Almost five years ago spiked editor Mick Hume and myself were defendants – in Court 14, next door to Galloway’s uncorrupted and independent corner – in a libel case brought by ITN that led to the closure of our magazine, LM. We are therefore acutely aware of the costly and time-consuming nature of libel trials. But the law does not only affect those journalists, broadcasters, editors and publishers who are faced with libel writs. It has a chilling effect on the whole of the media. Rather than tinkering with something that is antithetical to free speech, it is time we got rid of the libel law once and for all.

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