Britain's, or England's Libel Laws

Britain's libel laws

Sally Bercow has just been found liable to pay damages for libel.
Once again the court has not looked at the substance of the allegation, the facts, but has concentrated on whether saying something was defamatory

In July 1987 an English court awarded Jeffrey Archer damages of £500,000 (equivalent to around £1.5 million today).
But he lied. The High Court was wrong.

In 1995, Jonathan Aitken claimed huge libel damages, stating at the time: “If it falls to me to start a fight to cut out the cancer of bent and twisted journalism in our country with the simple sword of truth and the trusty shield of British fair play, so be it. I am ready for the fight. The fight against falsehood and those who peddle it. My fight begins today...”
He was also lying.

Lance Armstrong sued the Sunday Times for libel.
They had accused him of being a drugs cheat.
He was a drugs cheat, but lied and said he was not.
They settled by paying Armstrong damages and costs amounting to around £1 million. Lisa O'Carroll, in the Guardian on 22 January 2013, in an article headed: “How UK libel laws undermined Sunday Times in Lance Armstrong case” wrote:
“The legal battle with disgraced cyclist Lance Armstrong which cost the Sunday Times almost £1 million after it suggested he took banned substances shows how difficult it is to pursue investigations under British libel laws, with the burden of proof heavily stacked against publishers, according to those who worked on the original stories”.

Jimmy Savile was also protected by Britain's libel laws. Former Guardian editor Roy Greenslade wrote on his blog earlier this year:
“With the BBC taking a bashing from the tabloids over the Jimmy Savile affair, Michael White wonders why the 'tough tabloids' themselves didn't nail the man.
“It's a fair question. After all, many people have said Savile's predilection for young girls was something of an open secret. Former Sunday Express Editor Brian Hitchen admitted knowing about it 45 years ago.
“He was not alone. There were plenty of rumours. We all thought Savile was weird and probably up to no good. As White writes: 'I always thought he was a dodgy bugger'. But what about evidence as distinct from suspicion? Would any of it have been good enough as a defence should Savile have sued for libel?
"Paul Connew, when Editor of the Sunday Mirror in 1994, did have 'credible and convincing' evidence from two women who claimed Savile had been guilty of abusing them at a children's home.
“Though 'totally and utterly convinced' they were telling the truth, the paper's lawyers, after a careful assessment, decided it wasn't strong enough to risk publication. I am sure the same situation occurred elsewhere”.

So let us spell it out - British newspapers had evidence of Jimmy Savile’s committing illegal acts against under-age children. But because they were intimidated by Britain's libel laws from publishing their information about him he was free to commit many further illegal acts;
more children suffered at his hands because of the English law of Libel.

There are certainly more examples.
Jo Glanville, Director of PEN, the organisation which seeks to protect writers from censorship, has said: “Our libel laws allow the rich and powerful to silence their critics and stop the general public from receiving vital information in their interest. We need to reform our libel laws now to protect the freedom of speech of every citizen”.

Kirsty Hughes, the Chief Executive Officer of Index on Censorship, another organisation which campaigns against Britain's oppressive libel laws, wrote:
“English libel law is chilling global freedom of expression, by silencing writers, journalists, bloggers and human rights activists in the U.K. and around the world. Reforming these antiquated laws is long overdue…”

Tracey Brown, Managing Director of Sense About Science, stated:
“Libel laws are not just a Fleet Street issue. We have heard from scientists, campaigners, writers, academics and patients that their discussions and publications are being shut down by the threat of libel action. Critical and open debates are vital…the public are badly missing out without them”.

Wikipedia has an entry especially on the phenomenon of so-called 'libel chill', where they say,

“In a legal context, a 'chilling effect' is the inhibition or discouragement of the legitimate exercise of a constitutional right by the threat of legal sanction. The right that is most often described as being suppressed by a 'chilling effect' is the right to free speech. A chilling effect may be caused by legal actions such as the passing of a law, the decision of a court, or the threat of a lawsuit; any legal action that would cause people to hesitate to exercise a legitimate right (freedom of speech or otherwise) for fear of legal repercussions. When that fear is brought about by the threat of a libel lawsuit, it is called 'libel chill'. A lawsuit initiated specifically for the purpose of creating a chilling effect has been called a 'Strategic Lawsuit Against Public Participation, or 'SLAPP' suit”.

The Defamation Bill has been passed by both Houses of Parliament and is currently awaiting the Royal Assent.
Those who have been lobbying for change, like the Libel Reform Campaign, claim it will result in some useful changes.
Baroness Hayter (former Chairman of the Legal Services Consumer Panel), in the House of Lords was probably right when she said only recently:
“There is [still] no clear answer as to how…most people will be able to either start or defend a defamation claim. Without resolution on this, the risk of substantial costs remains, which more or less makes either the taking or the defending of a libel action open only to the super-rich, as the government have acknowledged”.

In Germany the government long ago set a limit of 10,000 euros for the amount of costs a successful libel claimant can claim from an unsuccessful defendant. This must go some way to address the problem. Other European countries have similar provisions.

What a difference that could make to the ability of the British media and ordinary citizens to state their honest opinions about various matters, or even to state things which they knew to be true. But a combination of the naked self-interest of libel lawyers and the extreme reluctance of our lawyer-dominated Parliament to change the law means that there has been no significant change in the result of Britain's oppressive libel laws. The rich can still afford to brow- beat those without money into silence.

Carer Ruck’s web site is informative as to how this actually works. I recommend a detailed analysis of their "successes" and how they were achieved.

Libel lawyers rarely allow their clients to appear in open court to give evidence and to fight their case on the merits. This is far too dangerous as it allows the alleged libeller to ask embarrassing questions, and changes the libel trial into a criminal one. Clearly in the English legal system that cannot be allowed, and so libel trials, if they occur at all, focus on matters which skirt round the original allegation. They count the number of angels dancing on the head of each particular pin.

The costs are racked up, on paper at least - and the defendant is given the opportunity to be silenced as an alternative to being found liable, and to have to pay in full.

This is precisely what happened with the awards from the Press to the McCanns and the Tapas7, and to Robert Murat.
There was NO TRIAL in any of these cases.
The facts were not heard.
They were not tested as to their merits, discussed, picked over, or anything.
The Papers simply gave in.

More recently we saw the way in which Tony Bennett was silenced.
He was put in an impossible position.
He was threatened with costs of over a third of a million pounds if he fought, and lost.
So, faced with bankruptcy if he failed on even one tiny point, and therefore probably very prudently, he gave an undertaking to be silenced.
It is a matter of record that he was found to be in breach of that undertaking and was sentenced to a term of imprisonment.

But again let it be understood, it has never been determined that what he said is or was libellous, never been determined by a judge that anything he said did not come within the legal defences of Truth, or reasonable comment or anything else. Only the solicitors acting for the Mccanns said it was. And that, apparently is enough.

Indeed the Judge, Mr Justice Tugendhat, mused openly about the legal position if it were to be shown that Madeleine had not been abducted. Even he can see the ludicrous position produced by stretching the law to this extent.
And again, to spell it out, even if the McCanns are shown to have lied, Mr Bennett will never be allowed to raise the subject again.

And the outcome, when it actually came to adding up the figures, the Solicitors involved could only show costs of £ 35,000. More than a third of a million pounds has been quietly forgotten about.
We are surely entltled to ask whether they ever existed, whether the Taxing Master would have found them all to be justified, or whether, as we may suspect, the racking up, on paper of costs like this is just a form of legalised blackmail.

Parliament seems paralysed. Simply to fall into line with other European jurisdictions would seem a neat way of working towards a solution to this problem.

I know it is an arcane specialty, and I do not profess to understand the subtle nuances - which is probably the whole idea anyway (!) but surely there is a better way of dealing with insults and false accusations.

I do not expect libel lawyers to agree, of course.

PeterMac wrote:

Britain's libel laws

Sally Bercow has just been found liable to pay damages for libel.
Once again the court has not looked at the substance of the allegation, the facts, but has concentrated on whether saying something was defamatory

In July 1987 an English court awarded Jeffrey Archer damages of £500,000 (equivalent to around £1.5 million today).
But he lied. The High Court was wrong.

In 1995, Jonathan Aitken claimed huge libel damages, stating at the time: “If it falls to me to start a fight to cut out the cancer of bent and twisted journalism in our country with the simple sword of truth and the trusty shield of British fair play, so be it. I am ready for the fight. The fight against falsehood and those who peddle it. My fight begins today...”
He was also lying.

Lance Armstrong sued the Sunday Times for libel.
They had accused him of being a drugs cheat.
He was a drugs cheat, but lied and said he was not.
They settled by paying Armstrong damages and costs amounting to around £1 million. Lisa O'Carroll, in the Guardian on 22 January 2013, in an article headed: “How UK libel laws undermined Sunday Times in Lance Armstrong case” wrote:
“The legal battle with disgraced cyclist Lance Armstrong which cost the Sunday Times almost £1 million after it suggested he took banned substances shows how difficult it is to pursue investigations under British libel laws, with the burden of proof heavily stacked against publishers, according to those who worked on the original stories”.

Jimmy Savile was also protected by Britain's libel laws. Former Guardian editor Roy Greenslade wrote on his blog earlier this year:
“With the BBC taking a bashing from the tabloids over the Jimmy Savile affair, Michael White wonders why the 'tough tabloids' themselves didn't nail the man.
“It's a fair question. After all, many people have said Savile's predilection for young girls was something of an open secret. Former Sunday Express Editor Brian Hitchen admitted knowing about it 45 years ago.
“He was not alone. There were plenty of rumours. We all thought Savile was weird and probably up to no good. As White writes: 'I always thought he was a dodgy bugger'. But what about evidence as distinct from suspicion? Would any of it have been good enough as a defence should Savile have sued for libel?
"Paul Connew, when Editor of the Sunday Mirror in 1994, did have 'credible and convincing' evidence from two women who claimed Savile had been guilty of abusing them at a children's home.
“Though 'totally and utterly convinced' they were telling the truth, the paper's lawyers, after a careful assessment, decided it wasn't strong enough to risk publication. I am sure the same situation occurred elsewhere”.

So let us spell it out - British newspapers had evidence of Jimmy Savile’s committing illegal acts against under-age children. But because they were intimidated by Britain's libel laws from publishing their information about him he was free to commit many further illegal acts;
more children suffered at his hands because of the English law of Libel.

There are certainly more examples.
Jo Glanville, Director of PEN, the organisation which seeks to protect writers from censorship, has said: “Our libel laws allow the rich and powerful to silence their critics and stop the general public from receiving vital information in their interest. We need to reform our libel laws now to protect the freedom of speech of every citizen”.

Kirsty Hughes, the Chief Executive Officer of Index on Censorship, another organisation which campaigns against Britain's oppressive libel laws, wrote:
“English libel law is chilling global freedom of expression, by silencing writers, journalists, bloggers and human rights activists in the U.K. and around the world. Reforming these antiquated laws is long overdue…”

Tracey Brown, Managing Director of Sense About Science, stated:
“Libel laws are not just a Fleet Street issue. We have heard from scientists, campaigners, writers, academics and patients that their discussions and publications are being shut down by the threat of libel action. Critical and open debates are vital…the public are badly missing out without them”.

Wikipedia has an entry especially on the phenomenon of so-called 'libel chill', where they say,

“In a legal context, a 'chilling effect' is the inhibition or discouragement of the legitimate exercise of a constitutional right by the threat of legal sanction. The right that is most often described as being suppressed by a 'chilling effect' is the right to free speech. A chilling effect may be caused by legal actions such as the passing of a law, the decision of a court, or the threat of a lawsuit; any legal action that would cause people to hesitate to exercise a legitimate right (freedom of speech or otherwise) for fear of legal repercussions. When that fear is brought about by the threat of a libel lawsuit, it is called 'libel chill'. A lawsuit initiated specifically for the purpose of creating a chilling effect has been called a 'Strategic Lawsuit Against Public Participation, or 'SLAPP' suit”.

The Defamation Bill has been passed by both Houses of Parliament and is currently awaiting the Royal Assent.
Those who have been lobbying for change, like the Libel Reform Campaign, claim it will result in some useful changes.
Baroness Hayter (former Chairman of the Legal Services Consumer Panel), in the House of Lords was probably right when she said only recently:
“There is [still] no clear answer as to how…most people will be able to either start or defend a defamation claim. Without resolution on this, the risk of substantial costs remains, which more or less makes either the taking or the defending of a libel action open only to the super-rich, as the government have acknowledged”.

In Germany the government long ago set a limit of 10,000 euros for the amount of costs a successful libel claimant can claim from an unsuccessful defendant. This must go some way to address the problem. Other European countries have similar provisions.

What a difference that could make to the ability of the British media and ordinary citizens to state their honest opinions about various matters, or even to state things which they knew to be true. But a combination of the naked self-interest of libel lawyers and the extreme reluctance of our lawyer-dominated Parliament to change the law means that there has been no significant change in the result of Britain's oppressive libel laws. The rich can still afford to brow- beat those without money into silence.

Carer Ruck’s web site is informative as to how this actually works. I recommend a detailed analysis of their "successes" and how they were achieved.

Libel lawyers rarely allow their clients to appear in open court to give evidence and to fight their case on the merits. This is far too dangerous as it allows the alleged libeller to ask embarrassing questions, and changes the libel trial into a criminal one. Clearly in the English legal system that cannot be allowed, and so libel trials, if they occur at all, focus on matters which skirt round the original allegation. They count the number of angels dancing on the head of each particular pin.

The costs are racked up, on paper at least - and the defendant is given the opportunity to be silenced as an alternative to being found liable, and to have to pay in full.

This is precisely what happened with the awards from the Press to the McCanns and the Tapas7, and to Robert Murat.
There was NO TRIAL in any of these cases.
The facts were not heard.
They were not tested as to their merits, discussed, picked over, or anything.
The Papers simply gave in.

More recently we saw the way in which Tony Bennett was silenced.
He was put in an impossible position.
He was threatened with costs of over a third of a million pounds if he fought, and lost.
So, faced with bankruptcy if he failed on even one tiny point, and therefore probably very prudently, he gave an undertaking to be silenced.
It is a matter of record that he was found to be in breach of that undertaking and was sentenced to a term of imprisonment.

But again let it be understood, it has never been determined that what he said is or was libellous, never been determined by a judge that anything he said did not come within the legal defences of Truth, or reasonable comment or anything else. Only the solicitors acting for the Mccanns said it was. And that, apparently is enough.

Indeed the Judge, Mr Justice Tugendhat, mused openly about the legal position if it were to be shown that Madeleine had not been abducted. Even he can see the ludicrous position produced by stretching the law to this extent.
And again, to spell it out, even if the McCanns are shown to have lied, Mr Bennett will never be allowed to raise the subject again.

And the outcome, when it actually came to adding up the figures, the Solicitors involved could only show costs of £ 35,000. More than a third of a million pounds has been quietly forgotten about.
We are surely entltled to ask whether they ever existed, whether the Taxing Master would have found them all to be justified, or whether, as we may suspect, the racking up, on paper of costs like this is just a form of legalised blackmail.

Parliament seems paralysed. Simply to fall into line with other European jurisdictions would seem a neat way of working towards a solution to this problem.

I know it is an arcane specialty, and I do not profess to understand the subtle nuances - which is probably the whole idea anyway (!) but surely there is a better way of dealing with insults and false accusations.

I do not expect libel lawyers to agree, of course.

PeterMac wrote:There's a nice one liner on the tweet. Sightly modified it runs -

"If I say I do not believe in GOD, I am entitled to my opinion
If I say I do not believe in the Abduction, I can be sued for a third of a million pounds, and lose my Liberty."

PeterMac wrote:So let us spell it out - British newspapers had evidence of Jimmy Savile’s committing illegal acts against under-age children. But because they were intimidated by Britain's libel laws from publishing their information about him he was free to commit many further illegal acts;
more children suffered at his hands because of the English law of Libel.

Châtelaine wrote:

PeterMac wrote:There's a nice one liner on the tweet. Sightly modified it runs -

"If I say I do not believe in GOD, I am entitled to my opinion
If I say I do not believe in the Abduction, I can be sued for a third of a million pounds, and lose my Liberty."

***
I would like to extent that to: if I don't have the money to hire the same league of lawyers ...

Monday, 13 February 2012
MADELEINE McCANN The 1,100,000,000 people who can buy, read and discuss ‘The Truth About A Lie’ - and the ‘free speech’ nation which cannot
A discussion document issued by the Madeleine McCann Research Group, 14 February 2012
On 20 October 2010, the Portuguese Appeal Court made a historic decision in the long-running case of Dr Gerald McCann and Dr Kate McCann -v- Dr Goncalo Amaral.
After a lower Portuguese Court had banned his book for 13 months, the Appeal Court decided, having regard to the right to freedom of speech and expression, that it was not libellous for his book, once again, to be freely sold in Portugal (and other countries, such as Brazil), where Portuguese is spoken.

We reproduce relevant extracts of the judgment below.

Not only has Dr Amaral’s book on the disappearance of Madeleine McCann, ‘The Truth About A Lie’, been freely available in Portuguese-speaking countries for the past 16 months, it has also, since various dates from September 2008 onwards, been available in no fewer than eight different languages, and all the countries that speak those languages.

We’ve done a calculation as to which countries have Dr Amaral’s book on sale in their main language. Here they are, in alphabetical order:
Andorra
Argentina
Austria
Belgium
Bolivia
Chile
Cuba
Denmark
Ecuador
France
Germany
Guatemala
Holland
Honduras
Italy
Luxemburg
Mexico
Nicaragua
Norway
Paraguay
Peru
San Marino
Spain
Surinam
Sweden
Switzerland
Uruguay
Venezuela.
We estimate that around 1,100,000,000 people live in those countries: 1.1 billion, or nearly one-sixth of the world’s population.

Madeleine McCann was a British girl, born and bred in England, a land famed the world over for its freedoms, including the right of free speech. Yet Dr Amaral’s book cannot be published and sold in this country. Indeed, not only that, former Madeleine Foundation Secretary Tony Bennett currently faces a term of imprisonment for, amongst other things, referring to that book. In July 2010, for example, the Madeleine Foundation published a leaflet about Dr Goncalo Amaral, in which this statement appeared:

“In ‘The Truth About A Lie’, Dr Amaral explains why he and his team had good grounds for believing Madeleine had died in her parents’ apartment and covered up her death”.
That was and is a true - 100% factual statement. Yet as The Madeleine Foundation reported last year, the McCanns believe that the British public should not even be able to read that sentence. Carter-Ruck told the Madeleine Foundation that that sentence in their leaflet was libellous.
The world has turned upside down. Over a billion people worldwide can read the account by the initial senior detective in the case of the history of, conclusions arrived at, in his investigation.
But the people in the land where Madeleine was born, so the McCanns say, should not be allowed to read it.

There are in fact translations of Dr Amaral’s book available on the internet. Such is the power of the McCanns’ lawyers, Carter-Ruck, however, that we are not sure if we can give you the links here. So we won’t.
But what we can and will do is reproduce those parts of the Portuguese Appeal Court’s judgment which explain just how widely in the world Dr Amaral’s book can be bought and read:
EXTRACTS FROM THE JUDGMENT OF THE COURT OF APPEAL
IN PORTUGAL - IN THE CASE OF McCANNS -v- AMARAL

On 24 July 2008, the defendant Dr Goncalo Amaral first published his book, through publishers Guerra e Paz.
In that book, Dr Amaral put forward the following hypothesis:

That the child Madeleine McCann died in the Ocean Club apartment G5A in Vila da Luz, on the evening of 3 May 2007
That the McCanns and their friends fabricated an abduction
That Dr Kate Healy and Dr Gerald McCann are suspected of involvement in the concealment of their daughter’s body
That the death may have been the outcome of a tragic accident
That there are indications of neglect of the care and safety of the children.

Dr Amaral’s book was published in four editions by the end of July, a further nine by the end of August, and another 12 by end of September. Each edition was of around 10,000 copies. [Thus, in all, around 250,000 copies were printed]. At the time of our decision, the book had been sold out at practically all points of sale.

When the book was published, Dr Amaral gave an interview to the newspaper Correia da Manha, published on 24 July 2008. In that interview, he explained his analysis of the case. He also gave interviews later to all other media that asked him for an interview, each time defending the book’s thesis.
At the beginning of May 2009, Dr Amaral published his book in France, this time under the title: ‘Maddie, L’Enquete interdite: Les revelations du commissaire portugais charge de l’enquete [The revelations of the Portuguese co-ordinator of the investigation].
Dr Amaral also gave countless interviews to several media in France, including the one that was published by Le Parisien newspaper in both its paper and online editions. In those interviews, Dr Amaral continued to promote his hypothesis on the case. The book’s French edition was, and continues to be, systematically and prolifically promoted on the internet, for example on the following websites: [a long list of websites follows] .

Between the date when the Portuguese edition was published [24 July 2008] and the date of the book’s French edition [May 2009], Televisao Independente (TVI) broadcast a TV programme produced by Valentim de Carvalho for the company Filmes, Audiovisuais, SA [FASA], who hold the copyright of the documentary.
The first transmission of that programme was on 13 April 2009, the second on 12 May 2009. This programme was essentially based on the contents of Dr Amaral’s book: ‘Maddie: The Truth About A Lie’. In that documentary, Dr Amaral appears and continues to advance his theory (a) that Madeleine is no longer alive (b) that her death occurred within their Ocean Club apartment, and (c) that her parents, the McCanns, concealed their daughter’s body.
At least 2,200,000 people viewed the first screening of this programme.

At the end of April 2009, a DVD of the programme was made, with the following title and subtitle: ‘Maddie - The Truth About A Lie: A powerful documentary based on the best-seller ‘The Truth About A Lie’ by Goncalo Amaral. Already, 75,000 copies of this DVD have been distributed for sale. The DVD is published on FASA’s website.

All the actions within the investigation that Dr Amaral reports in his book are documented within the investigation file. Not only that, but the investigation documents were also made available in electronic format, not only to the national media, but to international media. These media proceeded to divulge the contents of the reports and statements from the investigation file. This publication of the electronic reports naturally enabled knowledge of the facts of the investigation to be circulated. Public comments were made and soon there was universal discussion of the contents of the investigation file. Any individual in the world can have access to these facts and to the documents of the investigation which enabled the facts of the investigation to be verified. All of this was only a click on the mouse away.

The friends of the McCanns did not make themselves available in Portugal to attend a reconstruction [of the events of 3 May 2007]. This is all documented on pages 4,636 to 4,638 of Volume XII of the ‘Investigation Processos’ files, complied by the Prosecutor’s office.

Dr Amaral’s book was published, through other editors, in several countries, as well as in France, as we referred to above.
The publications occurred as follows:
In Spain, September 2008, titled ‘Maddie - La verdad de la mentira’
This was distributed in the Spanish/Castilian language in Spanish-speaking Latin American countries
In Denmark, in November 200, titled ‘Maddie - Sandheden on Lognem’.
This Danish edition was then published in the Nordic countries of Norway and Sweden
In Italy, December 2008, titled ‘Maddie - La Verita della Menzonga’.
That edition was distributed in Italian-speaking countries all over the world
In Holland, April 2009, titled ‘Maddie - De Waarheide Achter de Leugen’.
That was distributed in Dutch-speaking countries throughout the world
In Germany, in June 2009, with the tile: ‘Maddie - De Wahrheit uber die Luge’
This was also distributed in German-speaking countries, including Austria and Switzerland.
There is also an English version circulating on the internet, on the web site www.gerrymccannsblogs.co.uk/PJ/TRANSLATIONS.htm , where a Portuguese version can also be found.