Britain's libel laws are killing investigative journalism

This is our first guest post.

Willard Foxton has been a journalist for 6 years. He has published stories in papers around the world, and has covered everything from quaint welsh literary festivals to the Israel-Lebanon war. He recently presented the BBC's flagship documentary on the Madoff Scandal, "The Madoff Hustle".

My name is Willard Foxton, and I've recently lost my job.

I know what you're thinking: that's hardly unusual in this day and age. But keep reading, because I lost my job as a result of an injustice which threatens our democracy - Britain's appalling libel laws.

Until this month, I was the editor of the magazine arm of Chambers and Partners. You may not have heard of them unless you're a lawyer, but if you were a lawyer, you'd be impressed. Chambers and Partners ("Chambers") is a publisher which produces impeccably researched books and magazines on lawyers and the law.

When I started, the publisher told me he wanted me to revamp and relaunch Chambers' flagship magazine, Client Report. It had been a fairly dry quarterly magazine publishing surveys, but they wanted something more exciting, more investigative - a magazine exposing the great deeds and great misdeeds of the legal profession.

So Chambers Report was born. An investigative, bi-monthly title, with a specific focus on actually investigating things, rather than rearranging the words in law firm press releases. For a while this was all going brilliantly - for example, the magazine ran an in-depth exposé of a scumbag called Andrew Nulty who had become Britain's highest earning lawyer by stealing money from Miners dying of lung disease.

He was exposed, so hooray, triumph, joy - the villain fled the country, and to the best of my knowledge is now sunning himself on a heavily guarded yacht off the Spanish coast. So, there we were, doing good, exposing the truth, generally doing what journalists are supposed to do. And because our magazine was bankrolled by a highly respected millionaire publisher, rather than thin lipped, bloodless accountants who only care about the bottom line, I had the freedom to send my staff off to investigate all kinds of shenanigans that no-one else would touch, because of the fear of libel. We were looking into the solicitor's links with Trafigura, investigating shocking levels of sexism at city firms and probing the closely guarded secrets of the libel lawyers themselves.

Libel, for those who aren't law students, lawyers, or Guardian readers with Twitter accounts, is a type of law which says you can't say untrue things about people, and if you do, you have to pretty much crush them under a ton of money to make up for it. Well, that's what it's supposed to do. However, in the last 15 years or so, powerful people have started using Britain's archaic and creaking libel system to stop anyone saying anything about them, true or not. I was the victim of this law.

For those not working in the slowly dying print industry, libel is the big bad nightmare of most of the publishing companies we have left. The dull money men fear and hate libel in the UK - it is incredibly expensive to defend a libel action, and absolutely catastrophically expensive if you lose.

The best defence to libel is for the story to be absolutely true. So true it is all but irrefutable. So true, that only a frothing madman would sue you. This is the way I was taught at the BBC, and I brought the ethic with me to the new job.

The essence of the story is this - a large British law firm expanded lavishly in the Middle East, and this expansion had gone catastrophically wrong. We wanted to tell the world about what had gone wrong, and why it had happened.

The story wasn't written by me, it was written by one of my staff. However, I passed it fit for publication, as I felt it was an important story worth publishing. We fact-checked it extensively, included no single sourced stuff - we only used things which had been confirmed by senior people at the firm, mid-level people at the firm, and the firm's clients. We were sure it was all true.

We called up the firm in question, and asked them bare-facedly, "is all of this stuff true?" - and they harrumphed, and then a very senior figure in the firm grudgingly admitted that yes, it was all true. This is what in journalism is called "The Reynolds Defence" - we had asked the parties concerned if it was true, and they'd said it was. This makes your position much stronger in libel terms, as, well, if they say it's true, then you're set. We didn't receive a writ from the firm. This was because they accepted that the story was entirely true.

Still, there was one more thing that we could have done. There was one person who was universally blamed for a large part of the disaster. His superiors, his colleagues, his clients, even other practitioners in the region all confirmed that most of this was his fault. We had interviewed him, and surprise, surprise, his story was the only one which didn't fit the overall pattern. We had quotes about his involvement in every aspect of the disaster - from massively ambitious hiring policies, to scuppering multi-million dollar deals through ineptitude.

So, in those circumstances, I decided not to Reynolds this guy. We had a ton of evidence - and with lawyers it's become standard practice not to inform. Why? If we did inform him, the likely result would be an injunction, preventing us from printing, and another magazine stealing our story. As a bi-monthly magazine, whose primary competition was weekly, we constantly lived in fear of being scooped by our rivals.

I have since checked with the National Union of Journalists, and several libel lawyers  - all of whom I agreed I did the right thing, on both ethical and legal grounds, by not informing this individual. The smart among you will have by now realised that the Reynolds defence is all but unusable in situations like this - what for years has been a defence for libel has now become yet another weapon in the hands of the rich, powerful and unscrupulous. If you don't tell them, you are more open to libel law - if you do tell them, you story will probably be injunctioned out of existence.

However, in this case, the evidence was so strong (right down to senior people referring off the record to this individual as "the worst person we have ever hired"), I felt totally confident that we were safe.

I was wrong. Really, really quite wrong.

We received not only a libel writ from this individual, but also a list of pretty insane demands - which essentially added up to us republishing the article blaming everyone but him and flagging up a number of awards he had won. He also sent us a warning that in the United Arab Emirates, where he is based, slandering individuals of his status is a crime. A crime punishable by 2 years imprisonment and probably, we joked in the office, several hundred lashes.

Well, apart from the fact that Dubai was off my list of holiday destinations, we didn't have much to worry about. Because the story was absolutely true. 100% true. We had tons of interviews on tape. We had told the truth about someone. He could take it to court, and we would almost certainly win.

But there's the problem. To successfully defend my article, I would probably have had to have put my career on hold for a couple of years, and it will cost me (or my publisher) perhaps £25,000, I am advised, because if he lost, it would be almost impossible for a UK court to coerce my costs from him. And if I lost, then it will cost me roughly £500,000. Fighting and winning is bad enough; fighting and losing would be disastrous, even for a major publisher.

It's not just the publisher who could get sued either - because of the state of our libel laws, our distributors, our internet host, everyone even connected to us or the toxic-but-true article could be sued.

My employer, faced with this quandary, and the not-at-all-concerning prospect of lashings in a public square, decided to shut me down, moving back to dry, uncontroversial surveys, and fire me. He sat me down in his office, told me he respected me as a journalist - respected me so much, in fact that he wants me to keep writing for his publishing firm - but said that libel scared him far too much to take risks.

So there you go. A rich man in the emirates launches a libel writ against a UK publication for writing true things, and the publication bottles it. I lost my job; the journalist who wrote the story received a written warning about his conduct. Why? Because we uncovered and exposed the truth.

I think this story is illustrative of what our system of libel law does: it's not so much that critical stories can’t be written, but that they won’t be written twice. For most journalists (and their employers) the potential for a libel case is a powerful deterrent to criticism: the pieces aren’t worth the hassle. Most writers won’t take the risk of their jobs. Most publishers won't take the risk of losing the money.

And with libel laws like ours, who can blame them?

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Comments

[www.facebook.com/profile.php?id=61413884]

Fascinating post.

It paints a bleak picture though - for a young student journalist like myself, this climate of "Libel fear" - is unsettling. It allows for absolutely no errors and even if you do uncover the real truth (as you have done) - you can still come a cropper. Will anything in the future defend and protect investigative journalism from the emasculating power of libel law? I certainly hope so...

[T S]

Couldn't you have Reynolds'ed the guy right on press deadline, so that if he went for an injunction it would already be too late as the presses would alredy be rolling? Even so, he could still deny everything and sue your ass off.

[James Crawford]

Is this why Panorama has been so poor recently?

[WB Foxton]

Sadly, the whole point of Reynolds-ing someone is that they get a right to reply. If we had waited until an injunction was impossible, then we would also have forgone any Reynolds protections.

Lose-lose situation, you see.

[Spencer]

This is exactly what happens in Italy. Whenever something negative is written about Berlusconi, he sues. Obviously he can afford to take papers to court, while the papers simply cannot.

[Morus]

Spencer - I have the privilege of being taught at present by Alexander Stille. Anything that deserves to be said about Berlusconi has been included in his books. A must-read.

[R.B. Glennie]

As much as I sympathize (or `sympathise') with you Brits - you know, the earthy originators of modern liberty - I can't help but to gloat as to how so many of you apparently think everything that is bad comes from the United States.

In the U.S., though, `cases' like this wouldn't even be a case.

You badly need to reform your libel statute. And until you do, be kind enough to shut up about how unfree the U.S. is.

[www.facebook.com/profile.php?id=1100753460]

RB Glennie -- While I agree that British press laws are a disaster, the picture you paint of US libel law is a bit too optimistic. Investigative journalism in the US routinely draws harassment suits designed simply to wear down media outlets into non-publication.

See: http://www.tfij.org/facts/intimidation/

I'll quote this here:

"The 2007 Media Subpoena Survey, conducted by RonNell Anderson Jones, revealed that the 761 responding news organizations (media and television) participating in the study reported that their "reporters, editors or other news employees" received a total of 3,062 "subpoenas seeking information or material relating to newsgathering" in calendar year 2006. Weighting responses to estimate actual values for the entire population (media organizations) suggests that a total of 7,244 subpoenas were received by all daily newspapers and network-affiliated television news operations in the United States that year.

Newsroom leaders' responses lean heavily toward the belief that both raw numbers and subpoena risk are up. Sixty-four percent of all newsroom leaders believe the frequency of media subpoenas to be greater than it was five years ago. Nearly half believe the risk of their own organization receiving a subpoena is greater than it was five years ago, while only six percent believe the risk to be less."

[Keith]

The situation is much the same in Australia where despite some tinkering with libel laws recently they've killed off small newspapers and newsletters.

You can't publish news these days unless you have the staff and bankroll of a major corporation.

Australia's best known investigative reporter has given up after spending years in courts. He says it's just too hard now. The light is not worth the candle.

[Smith]

I can't see how this is the result of Britain's libel laws in particular. It sounds like your former employer didn't want to fight the case because it would have been very expensive - that's true in any case. It's not clear what exactly you could change about the libel laws - short of abolishing them altogether - that would have prevented this.

[Stephen]

On your blog at http://tinyurl.com/yal6zvl for April 2, 2009, you say "Essentially, I consider the actual truth of a story to be pretty unimportant", and you approvingly quote a friend as saying "After a while, you begin to wonder whether or not his stories are based on any element of truth whatsoever...".

Given that you are therefore a self-declared liar, why should we a) believe you are a journalist who has published around the world; b)are a former editor of Chambers and Partners magazine; and c) trust anything else that you say in this essay? Documentation, please?

[Willard Foxton]

There's obviously a clear difference between being a self declared braggart at the pub, and being a quality journalist. Believe it or not, the two often go hand in hand.

A.) Off the top of my head, you easily can find my work in the Sunday Times and New York Post, as well as in numerous magazines, and at the BBC website.

B.) As for Chambers and Partners, you are welcome to give them a ring and ask, or you can see the story in this week's Private Eye, describing the situation from a third party viewpoint.

If I am a liar, I'm a pretty amazing one, having fooled not only the staff at Big Brother watch, but also the staff at Private Eye too.

C.) I think you may be able to tell from the tone of my blog, which you obviously have read, that I am one of those people who will often exaggerate a story told in the pub for comic purposes.

There is a clear dividing line between my personal and professional life; I think it's mildly disingenuous to quote clearly comedic pieces out of context and claim they represent a professional code of ethics. Anyone is welcome to read the blog and draw their own conclusion, of course.

[Allen Esterson@compuserve.com]

Willard:
1. You say, at the top of this webpage, that you have published stories in papers around the world, including on Israel-Lebanon war. Now you say we can "easily" find your work in the Sunday Times and the New York Post. Well, not all that easily. I haven't been able to find a single article (other than relating to the Madoff case and the tragic death of your father) on the internet. So where are these articles published around the world, for instance, on the Israel-Lebanon war? Maybe they exist, but please don't say that they are "easily" found.

2. You write above that "we had asked the parties concerned if it was true, and they'd said it was", and that this "in journalism is called 'The Reynolds Defence'." In fact the very essence of the Reynolds defence is that newspapers can print untrue and defamatory information if they can prove it is in the public interest to publish it and that it was the product of responsible journalism. To describe asking the alleged culprits (or associates) whether your story is true "is" the Reynolds Defence is pretty shoddy journalism.

3. You say that "Private Eye" describes the story "from a third party viewpoint". I've just read their report. The "third party viewpoint" is no more than a reiteration of your story, with no additional evidence.

4. You say: "There is a clear dividing line between my personal and professional life; I think it's mildly disingenuous to quote clearly comedic pieces out of context and claim they represent a professional code of ethics."

Speaking for myself, in the context of the above article I wouldn't consider citing your blog piece in which you say "Essentially, I consider the actual truth of a story to be pretty unimportant", and "as long as Willard Foxton's stories are entertaining it matters little whether or not they are true, or even based on the slightest element of truth", were it not for the fact that I can't find any confirmation of your report, and cannot trace on the internet even one of these numerous stories you say you've published in the press. Would someone who didn't know you were a teller of tall stories know, for instance, whether the following report on your blog is true or just one of your stories:

"I have done lots of jobs in the last few years, almost all of which have come from the pages of The Guardian. These have included UN stints in the North Korea, teaching Israeli conscripts public speaking during a war, co-ordinating a giant classical music festival in Bath, doing Public relations for a multi-millionaire Russian ex-KGB "dissident" (1) & teaching at a school for the children of Dictators."

Is that "a clearly comedic piece" or not? I have to say, reading your blog, that I don't find "a clear dividing line between [your] personal and professional life".

I'm not saying your above story is untrue. I am saying I have yet to see evidence beyond what you yourself have written, that when I have tried to verify your statements about your credentials as a journalist who has publishing widely in the press I can find nothing, and that your account of the "Reynolds Defence" that features so strongly in the above article is shoddy (at best).

[Allen Esterson]

Willard: A postscript to my previous posting. If it *is* the case that your story about the potential libel action above is true (as it may well be for all I know), how would we know whether or not the libel writ from the individual in question was justified or not? We have only your word that the story is "absolutely true, 100% true".

[Allen Esterson]

P.S.S.

Willard: In response to Stephen's questioning your claim that you are a journalist who has published around the world, you replied:

"Off the top of my head, you easily can find my work in the Sunday Times and New York Post, as well as in numerous magazines, and at the BBC website."

Well, a Google search shows that the articles in the Sunday Times and New York Post were earlier this year on the Madoff affair and the death of your father, and I dare say it will turn out that the same is true of the BBC website. As an answer to a query about your having been a journalist for six years and published all over the world, that's a bit of a slippery answer. In fact I would say it's downright misleading.

[Willard Foxton]

I agree, since the Madoff affair, large amounts of Google returns are articles written about me rather than by me, but if you dig through you can find them - certainly, it's easy enough to find the Sunday Times/New York Post pieces you've found.

I flag those up precisely because they are a.)impressive and b.) easy to find. Maybe it is disingenuous to use articles written in well-known papers, but I can assure you that they take pride of place in my portfolio of work.

Yes, they are Madoff related I can assure you that the Sunday Times and New York Post don't let just anyone write news reports or features for them. Part of the reason I have worked so extensively on Madoff is because I am one of the only journalists who was a victim.

It is actually relatively hard to "prove" you are a journalist. Large amounts of publications and media organisations run website pieces without bylines, and a surprising amount of top-quality publications have no online presence at all - Private Eye for one, the magazines of Chambers and Partners for another.

I could insist (as is the case) that assorted un-bylined articles are my work, and large amounts of my writing is not available online (for example, large amounts of the reviews I have written for free at the point of access magazines such as Compass), but I may as well save you the trouble of posting a reply of "how convenient".

At the very least, the Private Eye piece confirms I was the Editor of the magazines at Chambers & Partners; indeed, if you want further proof, you can look at the saved Google cache of the Chambers & Partners page, then my contact details as editor are there.

I can assure you that respected publishers do not take people on as Editors of flagship magazines who cannot present a detailed portfolio of work; that you cannot be an editor of a magazine without substantial experience and good references from previous employers.

Equally, yes, I accept, the version of the Reynolds defence I outline here is simplistic in the extreme.

This is partly down to the constraints of space and readability in this article, and partly down to the fact that I'm not a libel lawyer, and will admit to ignorance of the finer technical points of the law.

However, one of the legal requirements of the Reynolds defence is that if you seek to use it, you must inform the plaintiff prior to publication of any article and give them a chance to reply (as I understand it).

If you do not do this, it seriously harms your chances of being able to claim Reynolds protection. While you have a chance of winning a Reynolds defence without informing the plaintiff, it seriously harms your chance of proving the conduct the defence requires and winning the case.

As I outline in the article, this is opens you to the possibility of injunctions. Obviously, I have simplified the explanation deliberately in this article, and I hold my hand up to that.

As for my blog, as I said, it is largely intentionally comedic in tone. You may have found while Googling me that I have twice won the world university debating stand up comedy trophy, as well as other stand-up competitions.

I would not expect material from my stand-up routines to be quoted as truth or verbatim statements of intent. The same is true of my blog. While I'm quite happy to defend myself in an open and reasonable way from all other accusations, I do think this one in particular is deeply unfounded and borderline offensive.

Considering the title of the Blog Post you refer to is "Zeppelin Designer seeks real job", where I talk about my ambition to become the UK's leading amateur zeppelin designer,and it contains a fake business card where I claim to also be a bongo player, I would say, yes, the reasonable man on the Clapham Omnibus might not take this as a mission

[Willard Foxton]

Cont...

statement about my Journalistic Ethics.