Some last words on that libel trial
Former editor of the now-deceased LM magazine, reflects on the bizarre world of the libel courts.
Reproduced from Last Magazine, summer 2000
At first, I did not recognise the distinguished-looking gent who crossed the floor, champagne glass in hand, to tell me that he enjoyed my columns in The Times, ‘even though you did say my courtroom was bizarre’. Then I knew. It was Mr Justice Morland, the judge who had presided over the libel trial that led to the closure of LM magazine. I had not recognised him with his wig off.
This was at a party, held soon after the ITN v LM trial, to celebrate the fact that our barrister, Gavin Millar, had deservedly been made a QC. Mr Justice Morland was there along with half of the legal establishment, from the Lord Chancellor downwards. I was there with Claire Fox, co-publisher of LM, representing the defendants’ community. And so I found myself in civil conversation with the judge whose intervention had helped ensure that ITN and two of its reporters were awarded a total of £375,000 in libel damages, which had closed our magazine and put myself and LM‘s other co-publisher, Helene Guldberg, on the road to personal bankruptcy.
Suppressing any desire to make m’lud eat the transcript of the trial, I suggested that his summing up against us must have been one of the more one-sided in legal history, and that I thought he had rescued the ITN case after their barrister ‘made an arse of it’. ‘I always try to sum up straight down the middle’, Mr Justice Morland replied, ‘but I find sometimes the middle is more to one side than the other’. After an interesting exchange of views on the merits of the English libel law and the size of damages awarded, Mr Justice Morland generously conceded that I was entitled to my opinion (in which case, I asked him, how come I got sued for expressing it?), wished me luck, and left. Like they say, it was nothing personal; just business.
My drink with Mr Justice Morland might just have been the most surreal conversation of my life, but it was somehow in keeping with the you-couldn’t-make-it-up atmosphere of Court 14 during the three weeks of the libel trial.
There was the moment when ITN reporter Ian Williams, asked about the accuracy of a 1992 newspaper article he had written about Trnopolje camp, came up with the Clintonesque reply that ‘I was not knowingly not telling the truth’. There was the moment when Penny Marshall, the other ITN reporter, having told the court of her exploits in war zones and troublespots around the world, concluded her witness box impression of Princess Diana by asserting that being criticised in an article published in LM had ‘upset me more than anything else that has happened to me’.
There was the point at which Ian Williams’ producer, Andrew Braddell, claimed that the newspapers had used ITN’s pictures to label Trnopolje ‘Belsen ’92’ because they were competing to make money by ‘printing sensationalist headlines’, whereas ITN was in the business of broadcasting ‘purely facts’. And there was the exchange in which a top ITN editor, Bill Frost, agreed that ITN’s famous image of Fikret Alic and the barbed wire at Trnopolje was reminiscent of Nazi Germany, but added that ‘I’m sure there were camps in Germany in the Second World War that were not concentration camps’. Gavin Millar: ‘You’re sure about that are you?’ Bill Frost: ‘Well I’m….No, I’m not sure of it.’
Perhaps the most surreal thing of all was that we lost the case, even though the central fact in Thomas Deichmann’s article, ‘The picture that fooled the world’ – that the barbed-wire fence at Trnopolje surrounded the ITN journalists – was never seriously questioned. Indeed, Gavin Millar did such an impressive job of proving it through cross-examination that Justice Morland had to concede in his summing up, ‘Clearly Ian Williams and Penny Marshall and their TV teams were mistaken in thinking they were not enclosed by the old barbed-wire fence’, before adding in his even-handed way, ‘but does it matter?’.
As defendants under England’s repugnant libel laws, we were deemed guilty unless we could prove our innocence not only by proving the actual facts in the LM article, but by justifying an implicit meaning that a reader might take from it. Summing up, the judge asked the jury to consider one question: ‘Have the defendants established that Penny Marshall and Ian Williams had compiled television footage which deliberately misrepresented an emaciated Bosnian Muslim, Fikret Alic, as being caged behind a barbed-wire fence at the Serbian-run Trnopolje camp on 5 August 1992 by the selective use of videotape shots of him?’ With the judge repeatedly emphasising the word ‘deliberately’, which never actually appeared in the article, we were being asked to prove not only what the ITN journalists did in 1992, but what was going on in their heads at the time. It is difficult to see how that could have been achieved without the aid of a time machine and a mind reader. The law demanded that we prove the unprovable. It was no real surprise when the jury decided, after four hours of deliberation, that we had failed to do so.
Even by the peculiar standards of English libel law, then, ITN v LM was an unusual case. Never before had a major media organisation, with a commitment to freedom of expression, sued an independent magazine for criticising its reports. In the USA, the case would probably not even have come to court, since the ‘public figure defence’ available under American libel law would have prevented an institution like ITN from suing us.
After the case, one BBC interviewer suggested to Claire Fox that recent libel verdicts had made some ‘strange bedfellows’; after all, she said, LM had been ruined, and so had former Tory ministers Jonathan Aitken and Neil Hamilton, and revisionist historian David Irving. Claire had to point out to her that it was actually ITN and its two journalists who had chosen to lie down with Aitken, Hamilton and Irving, as claimants who used the libel laws against their critics in the media.
Speaking of strange bedfellows, it was fitting that ITN should not only employ Biddle, the solicitors John Major used against the New Statesman and Scallywag, but also be represented in court by Tom Shields QC, whose lengthy libel case CV includes representing Robert Maxwell in his obsessive attempt to close down Private Eye, and representing five Stoke Newington policemen who sued the Guardian over its reports of corruption.
In the three years between the article being published and the case coming to court, ITN’s supporters tried to distract attention from all this by smearing LM magazine as being in league with Milosevic and Karadzic and funded by Serbian gold. (In the pages of LM I twice offered that, if anybody could provide hard proof of such backing, we would pay them double the amount they found. Unlike the libel case, that challenge never cost us a penny.) Since the trial, those trying to repair ITN’s reputation have indulged in increasingly wild fantasies about LM‘s part in an international pro-Serb conspiracy. I am tired of repeating that LM never sided with any of the nationalist factions fighting the Yugoslav civil war, nor had links with any foreign party or government. Perhaps, on reflection, we should be grateful that we only ended up in the libel court for publishing Thomas Deichmann’s article, instead of being dragged off to the War Crimes Tribunal. Or perhaps some of our hysterical critics should be grateful that I don’t believe in suing fellow journalists for libel.
There were, in fact, two entirely different motives behind our attitude to the case, which myself, Claire and Helene have spelt out in various newspapers and journals since the trial. For the record, let me outline them briefly again.
Our first concern throughout has been to counter the rewriting of the history of the Holocaust. That is why LM consistently pointed out the dangers of comparing a conflict like the Bosnian civil war to the Nazi genocide, as many did after seeing the ITN pictures of Fikret Alic and the barbed wire at Trnopolje. Our aim was not to deny that atrocities had been committed in Bosnia, but to refute the crude attempts to draw parallels between the Serbs and the Nazis. As I argued in the witness box, ‘The Holocaust is an absolutely unique horror in history, the great crime of the twentieth century, and if you start putting it on a par with the civil wars of today you can only diminish its horror, I think, and you do a disservice to the victims of the Holocaust’.
Our second motive has been to stand up for free speech. The prerequisite for democratic debate and resolving issues is that we must have freedom of expression, and the right to publish the truth as we understand it without the threat of being closed down by the courts. The libel courts are no place to decide the truth about history or the news. Such important questions should be openly debated, and people allowed to judge for themselves. That is why we asked ITN for a public discussion of the issues raised by the LM article for three years. But it seems they preferred the dusty atmosphere of Court 14 to the fresh air of the court of public opinion.
If the case itself confirmed, as I said on the steps of the High Court, that English libel law is ‘a disgrace to democracy and a menace to a free press’, some reactions to it revealed a new obstacle to freedom of expression. ITN chief executive Stuart Purvis called the verdict a ‘victory for frontline journalism over pundit journalism’. Ian Williams dismissed LM’s defenders as a ‘coterie of analysts and critics and chatterers’. ITN editor-in-chief Richard Tait said in typically modest style that ITN reports constitute ‘the first draft of history’, which must be ‘saved from the dishonesty of the partisan and the ideologue’.
Their shared assumption seems to be that eye-witness accounts cannot legitimately be questioned after the event. Back in the courtroom, this notion was given the stamp of legal authority by Justice Morland, who first ruled out LM‘s expert witnesses – including BBC world affairs editor John Simpson and the journalist and historian Phillip Knightley – and then entirely ignored our evidence in his summing up, all on the grounds that we had not been at Trnopolje camp in August 1992.
If we are not to be allowed to subject firsthand accounts to rigorous cross-examination, where does that leave critical and comment journalism in newspapers, never mind the writing of history books? Yet in the age of therapeutic journalism, those who subscribe to the I-Felt-It-So-It’s-True school of reporting condemn such criticism as offensive. Some went so far as to suggest that, in criticising ITN’s ‘first draft of history’ in Bosnia, LM risked going down the same road as the historical revisionist David Irving. This is frankly absurd. To reopen the files of history and reassess the evidence is not the same thing as deliberately distorting the facts, Irving-style. History is not written in stone by eye-witnesses. It is a battlefield where competing accounts are written – and yes, continually rewritten – by historians, all with their own perspective, attempting to assess the available evidence in context. As Professor Deborah Lipstadt, the defendant in the Irving libel case, said after that verdict, even the known details of the Nazi Holocaust could legitimately be put to question in the light of new evidence: ‘This is not theology.’
In the heated exchanges about our case, some journalists have revealed that they have no conception of what freedom might mean. But many others in the media have demonstrated that they are prepared to stand up for free speech – or, as some at ITN might describe it, chattering.
Was it all worth it? The verdict means that we cannot repeat Thomas Deichmann’s allegations against the ITN journalists. In a sense that is no great loss, since I don’t want to spend another three years talking about Williams and Marshall and that bloody fence. Far more importantly, the damages mean we have lost LM magazine. That is a loss that will be felt keenly by many who appreciate critical journalism, as the heap of supportive letters and emails we have received testify. I have never had any wish to be a victim or a martyr, especially a bankrupt one whose job has disappeared. We suspected we had little chance of winning the case under the libel laws. But what was the alternative to going through with it? To apologise for publishing what we believed to be true.
LM was always about speaking uncomfortable truths, raising offensive opinions and going against the grain whenever necessary. If we could not publish and stand by an investigative article like Thomas Deichmann’s, it would not have been worth having a magazine like LM anyway. We apologise for nothing, but we have refused every encouragement to appeal. Life is too short, and other issues too important, to waste any more time in that bizarre world of the libel courts.
Reproduced from Last Magazine, summer 2000
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