Britain’s libel laws are killing investigative journalism

Willard_Foxton 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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Posted by on Oct 27, 2009 in Legal Action | 30 Comments