ANOTHER VOICE
Under the enormous shadow of Miss Cornwell's bum
AUBERON WAUGH
The words to which exception was taken, in a review by the Sunday People's television critic, Miss Nina Miskow, nominated Cornwell as 'Wally of the Week' for her portrayal of an aging rock star in the 1983 ITV series No Excuses and continued: 'She can't sing, her bum is too big and she has the sort of stage presence that blocks lavatories.'
I have not read the judge's summing up, and hesitate to give credence to the asinine remarks attributed to him by court repor- ters, but according to the newspapers he invited the jury to 'decide whether the review went beyond the bounds of accept- able television criticism' and, in refusing a stay of execution pending appeal, com- mented: 'If I had tried the case without a jury, I would certainly have awarded Miss Cornwell a substantial sum.'
Perhaps I had better declare an interest in the matter, if only to define its extent. I have never met Miss Cornwell, nor seen her perform and have no idea whether her bum would be too large for my own taste or whether I could accommodate it. In fact I had never heard of her before this case, and doubt whether I shall hear her name again, unless possibly during legal argu- ments in court, if the case goes to appeal. It seems most unlikely that any serious televi- sion critic will write about her future performances, and I certainly have no intention of doing so. Of course, it would be safe to mention her name if accompa- nied by the most fulsome praise, but that is not really what criticism is all about. If Miskow had chosen to nominate Cornwell her Belle of the Week, saying that she sang like a nightingale, her bum was of perfect proportions and she had the sort of stage appearance which unblocked lavatories (whatever that may mean), we would presumably have heard no more about it. The words would be held to fall easily within the bounds of acceptable criticism. But if you cannot say she is no good, there is no point to saying she is good. Personally I am as unlikely to say one thing as the other, having no interest in Miss Cornwell, her singing, her bum or her likely effect on lavatories during a stage appearance.
My only interest in the matter, having decided to accept the editorship of the Literary Review from the middle of next month, is that this idiotic squabble about an actress's bum threatens to destroy a cornerstone of English letters. If a judge and jury are to decide whether a review `goes beyond the bounds of acceptable criticism', then it is undoubtedly true, as Cornwell's solicitor, Mr Glen Reynolds, gloatingly remarked, that 'critics are going to have to think twice before they criticise somebody now'.
Perhaps I should explain that the Liter- ary Review (available for only £14.00 for a year's subscription from 51 Beak Street, London W1R 3LF) is a monthly magazine of independent views, always good but immensely brightened up in the past 12 months by Miss Soames, which struggles along on less than half the Spectator's circulation with nothing to keep it afloat except the vitality, intelligence, perceptive- ness and general readability of its criticism. If Mr Justice Michael Davies's asinine instructions to the jury pass into law as a result of this silly, vain woman's complaints about her bottom, any disparaging com- ment can be made the subject of a libel action and any single libel action, like this one, awarding £10,000 plus £30,000 costs, could easily prove to be enough to close down the Literary Review — as well, I dare say, as Books & Bookmen, the New Review and most other publications in the field.
The whole basis of the law on criticism before Mr Justice Michael Davies stuck his nose into it was as follows: criticism must be the honest expression of opinion to attract the defence of Fair Comment, which means it must be written without malice. 'Mere invective' (see per Sacks .L.J. in Harris v. Lubbock 1971) is un- acceptable if it is addressed other than to the performance of work under review, but so long as invective is so addressed, with- out malice, and so long as it is the honest expression of an opinion, then there are no bounds, whether of exaggeration or extra- vagant language, which it need observe. Mr Justice Michael Davies's concept that there are 'bounds of acceptable television criticism' to be administered by the libel law turns everything on its head, des- troying the entire balance between free- dom of expression and freedom from calumny which it is the law's function to maintain.
There has never been any obligation on a critic to be just, or moderate, or correct in his views, or to express them with good taste. All that is required is that he should hold them honestly.
The jury have no right to apply the standard of their own taste and measure the right of the critic accordingly. If it were so, there would be an end of all just and necessary criticism, for a jury would be able to find a criticism unfair merely because they did not agree with the views expressed by the critic or think them correct. The basis of our public life is that the crank, the enthusiast, may say what he honestly thinks just as much as the reasonable man or woman . . . (per Diplock J. in Silkin v. Beaverbrook Newspapers 1958).
The question which the jury must consider is this: would any honest man, however pre- judiced he might be, or however exaggerated or obstinate his views, have written this criticism? (per Lord Esher M.R., Merivale v. Carson 1887).
Others have attempted to justify Mr Justice Michael Davies's attitude by sug- gesting that where criticism, if accepted as fact rather than as the expression of an honest opinion, threatens a person's liveli- hood, it mysteriously becomes a libel. This is nonsense. To say of a writer that he can't write, of a singer that she can't sing, is honest criticism, if honestly believed. The same is true if one says of an actress's bum that it is too big — since appearances are critical to the effect of drama — or of her stage presence that it might block lavator- ies. Such comments become 'mere invec- tive' only if they are not related to the performance in question — to some aspect of her private life — or if they are inspired by malice rather than by honest opinion. `The clearest direction is necessary to the effect that irrationality, stupidity or ob- stinacy do not constitute malice, though in an extreme case there may be some evidence of it' (Lord Porter, Turner v. MGM 1950).
But if the judge and jury, after Mr Justice Michael Davies, are to decide whether criticism is just, or whether its, expression falls within the bounds of what is acceptable, then we will have to leave all descriptions of actresses to their publicity agents, all descriptions of books to their jacket blurbs.
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