Publish and Be Damned

Britain’s libel laws allow the rich and powerful to silence the excluded

By George Monbiot. Published in the Guardian April 29th 1996

Vandana Shiva is a prominent critic of transnational corporations. When she came to Britain from India a couple of months ago, the Today programme invited her to speak about fast food chains. She agreed not to name names, and a pre-recorded interview was scheduled for the next morning. At 11.30 that night she received a call. The programme was sorry, but BBC lawyers had advised that the interview should not take place, in case she inadvertently libelled someone. Dr Shiva was astonished – in India such suppression is called censorship.

But the BBC’s legal advice may have been sound. In 1987, a stage play about working conditions in the fast food industry, which also named no names, closed after McDonalds demanded changes in the script and a public apology. Shrewd people don’t mess with big companies.

Britain has the most repressive libel laws on earth. American companies come here to silence their critics – they know they have a better chance of suing a magazine in Britain than in the US, even if it only sells a tiny number of copies over here. In America, public figures seeking damages must show that the published information was maliciously fabricated. Here, by contrast, the burden of proof is carried by the defendant. Available only to the rich, our libel laws are a devastatingly effective means of silencing the cries of the excluded.

Publishers and broadcasters know that the odds are stacked against them in a libel trial. Much of the information a defendant needs resides in the hands of the plaintiff, who can decide whether or not to release it. What the publisher might believe are matters of opinion – such as a claim that a company exploits its workers – are often investigated by the courts as if they were matters of fact. Even if the published material is shown to be substantially correct, one minor factual error means the defendant loses the case, carries the costs and may be exposed to monstrous damages.

So publishers nearly always choose to sort the matter out long before it gets to court. As potential plaintiffs become more enterprising, pursuing editors with threatening letters and injunctions long before their material sees the light of day, media lawyers are becoming ever more cautious and journalists ever less robust in their attempts to bring large corporations or powerful individuals to account.

Occasionally this self-censorship slips, and the papers or broadcasters publish something which they know to be true but cannot prove. There’s a disturbing hint of the Soviet show trial in the public renunciations which follow, in which the penitent editors attest that the injured company or public figure is in fact beyond reproach.

Our libel laws are crushing serious investigative journalism in Britain. They encourage our few surviving investigative strands to pursue petty con artists while leaving the Robert Maxwells to loot their pension funds in peace. They also subtly distort the news gathering operation. In February, BBC radio news reported that a protester at the Newbury bypass site may have attacked a guard with a hypodermic syringe. The incident, the report admitted, was unattestable and uncorroborated. Complainants were told that the BBC was even-handed – if protesters had made the same complaint about a security guard, the BBC would have given it the same treatment. This is obviously untrue. The guards belong to an incorporated organization, which could have sued the BBC. The protesters – unless they are named – have no such protection. Sensible journalists attend only to the shortcomings of the vulnerable.

Nowhere is the law more pernicious than when aggressively abused by public bodies. The Police Federation is reputed to possess a seven-figure budget for libel actions, which it now pursues with grisly enthusiasm. Local papers reporting racist language or rough treatment by police officers find themselves outclassed in court. As a result many newspapers proceed with agonising caution on an issue of the most pressing public interest.

The iniquities of our libel laws spread beyond the publicly accessible media. COPEX, the company which organizes the Covert Operational Procurement Exhibition, is suing, among others, a pensioner and a schoolgirl who wrote to the manager of the exhibition’s venue, questioning what they believed was the sale of unwholesome goods to despotic governments. As the manager is, in law, a third party, the suit has a reasonable chance of success.

Such cases insidiously erode our moral substance. When fear of the law discourages honest discussion and promotes the fearful suppression of what we believe to be true, then the law is a public menace. It contributes to the progressive trivialisation of debate, and the diffusion and evasion of public responsibility.

The Defamation Bill now passing through parliament might have been an opportunity to address these absurdities. It is, by contrast, frivolous, seeking little more than enhanced administrative efficiency.

Yet it would not be difficult to reform these laws. By introducing legal aid for defendants and shifting the burden of proof onto the plaintiff, libel law could be brought into line with the rest of our legislation. In 1993, the Law Lords ruled that local authorities cannot sue for damage to reputation, as this could stifle free speech. It’s hard to see why this principle should not extend to other agencies with the power to alter our lives, such as police forces and fast-food chains.

Such reforms would, of course, make cases of genuinely unfair damage to reputations harder to pursue, as actors libelled by the tabloids or campaigners libelled by the government would have to prove malicious intent. There’s the danger too that the relaxation of these laws would unleash such a frenzy of unattestable gossip that we would cease to believe anything we read or saw. But these are surely matters for more extensive and powerful media complaints commissions, rather than the cumbersome deliberations of the courts. There is no surer test of a successful democracy than the freedom of the powerless to challenge the claims of the powerful. Thanks to a handful of outdated laws, Britain flunks.