«The enormous costs of freedom of speech actions make a nonsense of such naivety. Newspapers which are telling the truth prefer to surrender to the risk of receiving crippling bills.»
by Nick Cohen*
Readers had to stare hard at the front page of The Times of 7 May 1966 to learn that the most gruesome murder trial of the decade was over. The lead story was a less-than-gripping piece about Roy Jenkins, the then Home Secretary, visiting the US to discover what lessons, if any, he could learn about law enforcement. The second lead was a long account of one small aspect of HM Government's interminable difficulties with the white settler revolt in Rhodesia. Squeezed between them, and filling about half of one column of a seven-column broadsheet was the news that Mr Justice Fenton Atkinson had given life sentences to Myra Hindley and Ian Brady for the murders of three children on the moors north of Manchester. The Times gave no details of the sadism involved. So disdainful was the editor of sensational journalism that he gave equal space and prominence to a speculative report that the Irish government's ban on the movement of horses might hit the English racing season.
The popular press was more forthcoming, as you might expect. In the frantic search for a scoop, editors hired helicopters to follow the police investigation and bought up the stories of witnesses. But the reporting was restrained, almost genteel. The police had found a suitcase Hindley and Brady had hidden in a left-luggage locker, with pornographic pictures of Lesley Ann Downey and a tape of her pleading for her life. No one who heard it forgot it, but the News of the World confined itself to saying, "There were 16 minutes of tape with a child — her mother has said it was Lesley Ann's voice — screaming and whimpering and crying ‘Please God, help me...please, please.' And there was a woman's voice — Myra Hindley's say police who have heard her at interviews — saying ‘Shut up or I will forget myself and hit you one.' Throughout these 16 minutes there was not another sound in the court, not a cough, not a whisper." Beyond that description, there was no other attempt to intrude on the girl's last moments. It never occurred to the paper to run the contents of the tape in full.
Reading the old clippings, I felt aching nostalgia for the lost age of popular literacy when the News of the World could fit almost as many words on to a page as The Times and expect its working-class audience to appreciate fine writing. Everyone at some point must feel an equal regret for the loss of British reticence and the coarsening of public life. The foul-mouthed celebrities on the television, the mob-raising screams of talk radio, the emotionally incontinent blabbermouths who reveal their secrets when they have nothing worth hiding all represent the collapse of the values of the old establishment which The Times and the News of the World held to in their different ways.
The compensation for the decline in civility is meant to be the decline of deference. Investigative journalism barely existed in the 1960s. The colleagues of my first editor regarded him as a brave pioneer because a few years after the moors murder trial he had published an exposé of detectives beating a confession out of a suspect in Sheffield. Local newspapers had never given the police such a hard time before. The super-rich of the day could also operate without scrutiny. Business journalism consisted of factual reports on companies' results rather than investigations into whether those results were genuine. Celebrities could present entirely false pictures of themselves to their fans. The oil sheikhs, who began moving into London in the early 1970s, were pleased to discover that they could operate with almost as much impunity here as back home in their Gulf statelets.
All that is meant to have been swept away by the destruction of the old elite. We may be a more unruly country today, but we are a freer country that holds the powerful to account: a more raucous and bawdy society, certainly, but also a more honest one. The word "establishment" now has a dusty, anachronistic ring. What does it mean? What real power do the monarchy, Lords, bishops all hold?
And yet one part of the old establishment is growing in power and using its muscle to overturn the gains made since the 1960s. With an aristocratic prejudice against freedom of speech for the masses and freedom for the press the masses read, the judiciary is imposing costs and sanctions on journalism which would be hard enough to endure in the best of times, but are unbearable now that the recession and the internet are destroying the media's business models.
I am sorry if this sounds a touch Marxist, but the judiciary is engaged in a class war and a political project. The class element ought to be obvious. The Sutton Trust, which seeks to improve educational opportunities for young people from non-privileged backgrounds, reported this year that after a small decline in their influence the public schools were regaining their grip on the law. Seven of the 10 leading judges, 68 per cent of leading barristers and 55 per cent of partners in the top law firms went to public school. Old schools and new money meet as the judiciary and London's extraordinarily aggressive solicitors use the law of libel and a privacy law they have virtually invented to protect the wealthy from scrutiny.
All over the world, free men and women — and, more disgracefully, men and women who are struggling to be free — are finding that English judges are claiming the right to censor their work and empty their bank accounts.
Conservatives complain about the "liberal judiciary". But their behaviour shows that the judges are not true liberals but the successors to the Whigs of pre-democratic Britain. William Hazlitt defined a Whig as "a coward to both sides of the question, who dare not be a knave nor an honest man, but is a sort of whiffling, shuffling, cunning, silly, contemptible, unmeaning negation of the two." The judges show how the duplicity Hazlitt described survives. They defend the rights of defendants in the criminal justice system with admirable tenacity. However, when the citizen is not the prisoner of the state but is exercising his or her right to be a full participant in the deliberations of the state they shut him up. They subvert the right to freedom of speech protected by the first amendment of the American Constitution, sanctified by custom in Britain and enshrined in statute in the Human Rights Act, because they think the press should be like the BBC, another somewhat Whiggish institution. The press has never been and never wanted to be like the broadcasters. At its best, it produces investigative journalism the BBC would never dare broadcast. At its worst, it produces sexual pornography and the pornography of violence the BBC would never wish to show. The effect of judicial activism is to stifle the best and promote the worst. The reticence that covered the last minutes of Lesley Ann Downey has long gone as editors try to find a way of appealing to a mass audience that won't land them in court.
Writing about the courts presents many difficulties. The largest among them is not the risk of being sued yourself but the widespread notion in Britain that if you tell the truth, you have nothing to worry about. The enormous costs of freedom of speech actions make a nonsense of such naivety. Newspapers which are telling the truth prefer to surrender to the risk of receiving crippling bills. A legal director of a chain of regional newspapers told a recent meeting organised by Index on Censorship that this meant his editors never printed anything that might provoke a libel action, settling any claim regardless of the merits of the case.
If this sounds like cowardice, consider that the Centre for Socio-Legal Studies at Oxford University recently worked out that defamation cases in England and Wales were 140 times more costly than the European average. Newspapers were "shackled", it said. They self-censored because they "no longer had any economic incentive to defend [themselves] against defamation actions in court".
The inordinate expense would not be so pernicious if there were a level playing field in court. No such playing field exists. Libel is an aberration in English law because it has a reverse burden of proof. Once the claimant establishes that there has been a defamatory statement (an easy test to pass), the onus is on the defendant to prove his or her innocence. Contrary to the principles of the Common Law and natural justice, the odds are stacked against the defendant. I accept that false accusations wreck lives, but overwhelmingly the ones that cause the most damage come from the agents of the state. If, however, the police falsely register you as a potential danger to children, you will almost certainly find that you cannot sue them for a libel which may wreck your career because their assertions are protected from court challenges. Libel is a peculiar law directed mainly at writers and broadcasters.
You may look at filthy headlines in the newsagents and wonder why you should care. Tom Stoppard summed up the gap between the high theory of press freedom and the grubby reality of press practice in his play Night and Day when he had Jacob Milne, an idealistic young reporter, declare, "No matter how imperfect things are, if you've got a free press everything is correctable, and without it everything is concealable."
"I'm with you on the free press," replies Ruth Carson, a rich woman who has been hounded by prurient reporters. "It's the newspapers I can't stand."
As a newspaperman, I could argue that good journalism — whether in tabloids or broadsheets — is far more likely to attract writs than bad journalism, but I want to emphasise instead a point that is hardly ever made: freedom of the press isn't only about freedom for the newspapers Ruth Carson couldn't stand, but freedom for everyone who writes. The internet, which is draining money from traditional media organisations, has created a host of small providers of news and opinion. "Citizen journalists" cannot possibly afford the costs of a libel action. When the wealthy challenge them, bloggers must capitulate or face bankruptcy. I have seen an Iraqi plutocrat, found guilty on corruption charges by a French court, use the threat of libel to "scrub" the web. His solicitors have intimidated tiny and virtually unread websites. When I Google his name now, I struggle to find any site that mentions he is a convicted criminal.
Nothing in English law stops scientists, who must debate without fear of the consequences, being hauled before the judges. A British doctor, who contested whether a pharmaceutical giant's heart treatment was effective, does not face a long argument in peer-reviewed journals but an action in the libel court. Scientists all over the world are astonished that the British Chiropractic Association can sue Simon Singh, a leading science writer, for saying that the alternative therapy does not work. Typically — and here is another of the problems writers face — the leading libel judge Mr Justice Eady has told Singh that he must defend the most extreme meaning of the words he wrote, a meaning he never intended. Instead of having to argue that the alternative medicine is mumbo-jumbo — an argument that would be worth having — Singh must prove that chiropractors know it is mumbo-jumbo but peddle it to a gullible public regardless. Sir David King, the government's former chief scientific adviser, spoke for many when he said that it was "ridiculous that a legal and outdated definition of a word has been used to hinder and discourage scientific debate. We must be able to fairly and reasonably challenge ideas without the fear of legal intimidation."
So we should, but there is no sign that the fear of intimidation will lift in the foreseeable future. The best evidence I can think of to convince doubters of the dangers of what the judiciary are attempting is the astonished reaction of foreign observers to English censorship. They do not shrug their shoulders and say that the press is the author of its own misfortunes. They protest and say they cannot believe that a country they once regarded as a defender of liberty can tolerate censorship.
The case that turned the English libel law from a local scandal into a global cause célèbre was brought by Sheikh Khalid bin Mahfouz, a Saudi banker, against the New York author Rachel Ehrenfeld. Her book on terrorism, Funding Evil, had not even been published or publicised in Britain. A few copies had arrived here via Amazon, however, and that was enough for Mr Justice Eady to order her to pulp her work and pay hefty costs and damages.
I am only able to tell you what the case was about without getting Standpoint sued because, to the regret of all the London lawyers he enriched, bin Mahfouz died after a heart attack in August, and the dead can't sue — not even in England. He was an appalling man, whom the New York Authorities fined $225 million for his part in the collapse of the fantastically corrupt Bank of Credit and Commerce International in the early 1990s. An inquiry in Dublin found that he had then bought Irish citizenship for himself and 10 members of his family over lunch with Charles Haughey, the greatest crook in recent Irish politics. By his own admission, his charity funded al-Qaeda but only, he insisted, when it was fighting the Soviets in Afghanistan. Anyone who challenged that assertion or looked at whether money had passed through his Saudi bank to extremists was met with a writ and the prospect of a horrendously expensive libel case. I am not allowed to describe the contents of the book in my own words, so I will leave the task to the Labour MP Denis MacShane, who said under the protection of Parliamentary privilege:
"Funding Evil examined the flow of money towards extremist organisations that preach the ideology of hate associated with Wahabism and other democracy-denying aspects of fundamentalist Islamic ideology. It is not exactly a secret that a great deal of the money that has financed fundamentalist extremist organisations that support jihad has come from Saudi Arabia. Ms Ehrenfeld's book, which was published in America, not Britain, named a Saudi billionaire called Mr Khalid bin Mahfouz. Although the book was published in the United States, and was not on sale in any British bookshop, he found lawyers to sue in Britain. A British judge imposed a fine and costs on Ms Ehrenfeld, and said that her book should be destroyed, even though she was not in the court. No American court would have entertained such overt censorship.
"The fullest examination is vital of those raising money, sometimes ostensibly for charitable work, but which ends up promoting fundamentalist ideology that scrambles young men's and boys' minds and leads them to become terrorists. There is no freedom of expression in Saudi Arabia, so it is the duty of others to expose what is happening. With the help of British libel lawyers, Mr Mahfouz has launched 33 suits against those who are investigating this important area of public concern. Cambridge University Press was obliged to pulp its book, Alms for Jihad, written by Robert Collins and J. Millard Burr, rather than face a libel action. What is happening when Cambridge University Press, not some odd little obsessive publishing house, but one of the flowers of British publishing for centuries, has to pulp a book because British courts will not uphold freedom of expression?"
The Ehrenfeld case made American publishers realise that an odd sale on Amazon or the transfusion of ideas via the internet to Britain, could wipe out their constitutional protections. They lobbied the US Congress to declare that English libel verdicts should be unenforceable in the United States — to rule, in other words, that as far America was concerned Britain, an ally whose jurisprudence has its roots in the English Common Law, was now a pariah state. Whatever legions of faults they possess, however often they have been on the receiving end of criticism from the press, American politicians responded. Congress Rory I. Lancman of the New York state legislature spoke with a plainness I long to hear from British politicians, and boomed, "When American journalists and authors can be hauled into kangaroo courts on phony-baloney libel charges in overseas jurisdictions who don't share our belief in freedom of speech or a free press, all of us are threatened."
The attention devoted to the plucky Ms Ehrenfeld's fight against Mr Justice Eady, and the condemnations from the US House of Representatives and the United Nations it produced, can sometimes miss the fact that pulping order he issued against Funding Evil was hardly a one-off.
My incomplete files include the case of Roman Polanski, whom the Law Lords allowed to sue in London, even though he could not appear in person at the High Court because he had fled to France from America in 1978 to escape charges of having unlawful sex with a 13-year-old girl. The indulgent judges allowed a fugitive from child abuse allegations to escape the indignity of being arrested and deported by the British police and said he could deliver his evidence via a video link instead. (He duly won a wad of damages.) The courts then allowed the Ukrainian oligarch Rinat Akhmetov to sue the Kiev Post in London, even though it has barely 100 subscribers in Britain, and the Obozrevatel Ukrainian news site, which doesn't even publish in English. They did not intervene to stop the Icelandic bank Kaupthing suing the Danish paper Ekstra Bladet for alleging that it followed dubious practices — an allegation somewhat vindicated by the bank's subsequent crash. Meanwhile, the NGO Global Witness had to fight a libel threat after it published details of how the son of the president of the Congo was spending a fortune on luxury hotels and luxury goods. The president claimed it was "racist" for Global Witness to reproduce his son's lavish credit card bills on its website, and although it won, it had to divert effort and resources to combating lawyers rather than fighting poverty.
There has been far too little opposition to a legal establishment, which is besmirching Britain's good name in the world because the British media is hopelessly divided. "Serious" newspapers complain about libel law but not about the judge-made law of privacy because that only seems to hurt the proles on the tabloids, whose interest in the sex lives of the rich and famous the high-minded affect to deplore. I suspect they will soon begin to regret their silence. Increasingly, the judges are using privacy law to stop traditional investigative journalism.
For instance, a newspaper I cannot name found that the chief executive of a company I cannot name, in a sector of the economy I cannot name either because it might identify the company I cannot name and thus the chief executive I cannot name, had had affairs with three members of his staff. As the company ran into financial difficulties, the paper thought that its investors and employees had the right to know that the boss was pursuing his subordinates — itself a disciplinary offence in many firms — rather than running his business. On no account could it publish. Even though Bill Clinton faced impeachment hearings for less, privacy law covered the chief executive's affairs in the office.
I must confess that I do not like, and do not read, exposés of the private lives of celebrities. However, I like even less the judiciary's notion that the celebrities can expose their private lives when it suits them and sue newspapers when it does not.
In Night and Day, the idealistic journalist pours out his feelings on the limitations of newspapers. "You don't have to tell me," he cries. "I know it better than you — the celebration of inanity, the way real tragedy is paraphrased into an inflationary spiral of hackneyed melodramas — Beauty Queen in Tug-of-Love Baby Storm...Tug-of-Love Baby Mum in Pools Win...Pools Man in Beauty Queen Drug Quiz. I know. It's the price you pay for the part that matters."
Stoppard was writing in 1978, and "Beauty Queen in Tug-of-Love Baby Storm" stories seem quaint now. Compare the News of the World's coverage of the Moors' murders with its account of the murder of Baby P. The paper spoke to a 15-year-old witness who, it said, lived at the family's "filthy, flea-infested north London council house with human excrement smeared across the walls and a putrid stench of stale urine that choked your throat. Still racked with guilt that she felt too terrified to act at the time, the teenager told how the stepdad:
* SLICED off the tot's fingertips with a Stanley knife and wrenched off his little nails with pliers.
* SMACKED his private parts with a shoe."
And so it went on. Not just the tabloids but the old broadsheets and the broadcasters are giving ever more explicit accounts of sensational stories that won't land them in the courts, rather than investigating the Iraqi arms dealers, Saudi bankers, Icelandic financiers, African dictators and post-Soviet oligarchs who will sue on the smallest provocation.
We need to import the American system of protecting comment on public figures from legal action unless malice or a reckless disregard for the truth drives the writer, for practical as well as moral reasons. Our judiciary is giving us the worst of all possible worlds: censorship when openness is needed and openness when a decent reticence is required. The "price you pay for the part that matters" is growing steeper by the day.
in Standpoint magazine
* Nick Cohen is a columnist for the Observer and the London Evening Standard. He is the author of Pretty Straight Guys, What's Left?, and Waiting for the Etonians.