In its Christmas quiz, Private Eye reminds readers that in 2009 the pornographer and newspaper owner Richard Desmond sued the business journalist Tom Bower for saying in passing that he told his editors what they must put in their papers. Desmond insisted that the very idea that he might use his tame journalists to reward his friends and punish his enemies was a libellous slur.
"Which of the following evidence," asks the Eye, "did Mr Justice Eady rule was relevant to the case and could go before the jury?
a) The full text of a memo from a former editor complaining that he was forced to run ‘unjustified stories to settle scores'.
b) A tape of Desmond telling a businessman ‘I'm the worst fucking enemy you'll ever have' three days before a negative story was printed about him.
c) The fact that Desmond once punched a night editor for not running a story he wanted in the paper."
As anyone who watches restriction on freedom of expression will have guessed, Eady ruled all of the above inadmissible.He refused to allow evidence of proprietorial interference to be heard in a case about proprietorial interference. Bower went to the Court of Appeal, and thankfully, scored a rare victory for a writer in the courts. But it is worth bearing Eady's judgement in mind, as you listen to the growing protests about libel. Everyone from bloggers to a publishers know that if they are sued they will in all likelihood face a hostile judge, a biased law and enormous costs. (See my piece on the chilling of English journalism for Standpoint here for the full picture.)
Don't make the mistake of thinking that it is only journalists investigating plutocrats who back off. Fraser Nelson of the Spectator has an important piece about Umar Farouk Abdulmutallab, who, like so many others, seems to have been radicalised at a British university.
These guys never act alone. What about his accomplices? After 7/7 the US press were free to name men identified by the US intelligence authorities as prime suspects. British publications repeating these names were sued by the people in question. In Britain, even convicted terrorists have successfully sued for defamation. Other aspects of a terror attack - family, friends, social networks, supportive organisations - will be in the American press far sooner than the British press. If a journalist's "security sources" won't testify in court (most won't) then it's not for use. Make no mistake: lawyers will be working overtime in Fleet St today, to cut and censor information that is written in good faith and in the public interest. This is what we all have to do now - magazines, newspapers, blogs, the lot. It is precisely at moments like this, when journalists struggle to present a fuzzy picture as best they can to their readership, that the libel lawyers start dialling 118 and start asking those named if they'd like to try their luck and sue.
Since becoming editor of The Spectator, I have been even more struck by the freedom of expression implications of all this. Investigating or writing about Islamic terrorism (which we do, on a point of principle) is perhaps the single most expensive thing that a UK publication can do (more than war reporting) because you can be guaranteed that lawsuits will follow. Even spurious claims can often get a settlement, because the process of engagement is so costly for the magazine or newspaper - and often no-win-no-fee means the complainant faces no outlay at all. We can even be sued for linking to overseas websites, or sued for a comment on a website.
If you want an example, Harry's Place adds that Abdulmutallab may have visited the East London Mosque, and as anyone who has tried to write about its links to Jamaat-e-Islami knows, publication or the promise of publication is invariably followed by a writ from Carter Ruck anxious to protect its clients' reputation as the British establishment's favourite mosque. As Harry's Place explains
It has received visits from Prince Charles. Boris Johnson visited it to encourage non-Muslims to fast during Ramadan. The then Lord Chief Justice, Lord Phillips, delivered a speech in which he envisaged a ‘role' for Sharia within the English legal system. It has received huge wads of "Prevent" cash from the Government.
It has also hosted fundraisers for Interpal, which is associated with Hamas. It has been used by Awlaki and his supporters, to urge Muslims not to assist the police. The antisemite, Al Sudais was a guest of honour, earlier this year. The name of its Imam, Qayuum, appears on the pro-terrorism "Istanbul Declaration", having apparently attended the conference at which it was produced: although he now denies having signed it. Its management has included those who are the subject of serious allegations of Jamaat-e-Islami war crimes during the Bangladesh War of Liberation. Other senior figures involved with the Mosque are closely connected to Islamic Forum Europe, a Jamaat-e-Islami front organization.
The libel law's threat to our security is two-fold. First, it stops investigative journalism for the reasons Fraser Nelson explains. Less tangibly but more seriously in my view, it bolsters a culture which shirks a confrontation with radical Islam. I have written at length about why the liberal mainstream and the BBC treats clerical fascism with an indulgence they would never extend to white neo-Nazism. If they are to change, we need to demonstrate the extent of their betrayals, but the libel laws force us to bite our tongues and avoid essential arguments.
Nick Cohen is a columnist for the Observer and author of You Can't Read This Book: Censorship in an Age of Freedom (Fourth Estate) and What's Left? How The Left Lost Its Way (Harper Perennial). Living With Lies, a collection of his writing for Standpoint, is available as an ebook.
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