Pedalling all the way to the bank: Lance Armstrong sued the Sunday Times for (correctly) alleging he cheated. He was awarded £600,000
Had you believed what you read in the newspapers at the time of the Leveson Report, you would think that the British press had enjoyed untrammelled freedom for centuries, a freedom that would be in danger if it had to correct its mistakes and inaccuracies at the behest of a regulator with statutory powers. In truth, our communications were regulated by statute even before the invention of printing-by a medieval law which condemned eavesdroppers and gossips to the ducking stool, and in 1275 by a statute punishing "Scandalatum Magnatum", the making of allegations that discomfited "the great men of the realm". Today, dozens of statutes fetter the press in what they can report: Leveson's proposal is different only in that it would require them to report more (an adjudication on their errors, for example) rather than less. And while the furore over the Report occupied the headlines until the Royal baby, no newspaper bothered to notice the statute which Parliament is currently passing that really will curtail their freedom: the Defamation Bill. It is a Bill that does nothing to rein in the law that makes London, as the Americans put it, "a town named Sue", and that virtually abolishes jury trial, long regarded as the practical guarantor of free speech.
Newspaper editors may ignore or circumvent ethical rules, but they cannot get around the law of libel. It costs them not so much in damages, which are capped at about £250,000, but in legal fees which are astronomical (a recent study found that London is more than 100 times more expensive than other European capitals for defending defamation cases). It is the main reason why speech in this country is "chilled"-by the fear of litigation, and by newsroom obeisance to the night-lawyer's credo, "If in doubt, take it out". Hence, there was no way to publish any of those reasonable suspicions about Jimmy Savile and Cyril Smith, which could only surface after their deaths. And even when the evidence is compelling, miscarriages of justice are common—such as the success of lying cyclist Lance Armstrong, who took the Sunday Times to the cleaners for hinting at the truth. My favourite plaintiff remains the late John Profumo, who won libel damages and grovelling apologies from two Italian magazines for daring to suggest he had slept with Christine Keeler, just two weeks before he confessed to Parliament.
Why does the law of libel operate to suppress so much information and credible speculation? The main reason is because of the rule, unique to defamation, that the burden of proving the truth of an impugned statement rests on the media defendant. This is the result of an absurd "presumption" made by the courts that every defamatory statement is false—absurd, because many defamatory (i.e. seriously critical) statements are true, in whole or part. The practical consequence of this legal irrationality is that newspapers have the burden of proving truth, not merely to the civil standard ("more likely than not") but to a higher standard when they allege criminal conduct. Thus no media outlet could allow any hint of Jimmy Savile's abusive sexual propensities to be published while he was alive, and the Sunday Times is reported to have paid £600,000 in legal costs because it could not prove to the requisite high standard that Lance Armstrong had ever used drugs.
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