Another voice
'A licence for liars'
Auberon Waugh
In moments of perplexity or doubt one must seize upon whatever certainties present themselves. Through all the confusion and contradictory noises after the Observer's glorious victory in its libel action Redgrave and Others v Astor and Another one, highly personal, certainty emerges: I am not going to make any contribution to Ms Redgrave's £70,000 appeal voluntarily, and shall resist making an involuntary one with my last breath. Ms Redgrave has been reported as saying'! think the Trade Union and Labour Movements will help us.' If! learn that my own union, the National Union of Journalists, has contributed so much as a paper handkerchief I shall stir myself from slumber nor shall my sword sleep in my hand until I have hounded the union officials responsible out of office.
The plain truth of the matter, as we eventually learned, is that the Observer won the case on a plea of justification under Section Five of the 1952 Defamation Act. It did not, as had been earlier suggested, have damages reduced to nil and so win costs by pleading plaintiffs' general bad reputation in mitigation of damages, as allowed by Scott v Sampson (1882). Personally, I feel that this latter plea should be a regular ingredient in nearly all defences in libel — not seeking to establish a bad reputation where none exists, merely to quantify the injury in every case. If the Observer had won its case in this ingenious way the decision might, indeed, have been 'unprecedented' — as Ms Redgrave described it at her Press Conference — hut! do not see that it would have been any less cause for congratulation. But it didn't. The newspaper won a simple plea of justification —that the words complained of were, in essence, true — and although it is by no means unprecedented for the defendant to win an action in this way it has become so rare in the past fifteen years, and so dangerous even to attempt it, that we should all surely take a little time off to pat Mr Astor on his sensitive, finely moulded back and sing Tor He's a Jolly Good Fellow' or words to that effect.
In the past fourteen years, when I have been following libel cases, I can only think of three which have come to court and ended with anything which might be described as a victory for the defendants: Dering v Uris (the concentration camp doctor case) of 1964, which ended with contemptuous damages of a halfpenny; Brooke (the Spanking Colonel) v People, which ended with nominal damages of £1, as I remember; and a strange case called Gayre of Nigg v Sunday Times which didn't cause much stir and where the defence, I imagine, was one of fair comment. No doubt there have been others but very, very few compared with the list of successful plaintiffs from Liberace to Telly Savalas or the even longer list of would-be plaintiffs who have been bought off with large settlements — Elizabeth Bazaya Princess of Toro, Harold Evans, 'Don' Ryder, Baron Ryder of Eaton Hastings. One does not wish to touch any murky, demagogic chord of xenophobia, of course, but when English writers writing in England for an English readership can't even defame foreign politicians and deposed potentates like Dom Mintoff and Milton Obote (who live abroad) without risking huge compensation, then it is plain that England's press laws have become the laughing stock of the world.
No wonder that in the shock of a defence in libel actually succeeding, all the newspapers got it wrong. The Times, having got hold of the wrong end of the stick about how the Observer won, seemed to suffer a rush of blood to the head in its extraordinary leader on Saturday: 'The Observer has not come out of the case with credit. The Redgraves have, in a sense, been denied justice.' It is fervently to be hoped, as they say, that now The Times has had its mistake pointed out to it, we will see another leader suggesting that the Observer comes out of the case with enormous credit, and the Redgraves have indeed met the justice they so richly deserved. If I were editor of the The Times I would go even further, and urge the Observer to pursue its recovery of costs with all expedition, distraining on the freehold of the WRP's controversial Centre for Revolutionary Studies in the Peak District if possible and certainly on the earnings of all six plaintiffs. They might even put the house to good use as a retirement home for elderly Observer journalists.
If a single failure in the libel law is indicated by the present case, it is surely summed up in Ms Redgrave's guileless statement at her Press Conference that neither she nor the other plaintiffs can afford to pay the costs of the action they launched. It has long been established — at any rate since Cowan v Taylor, 1885, confirmed by Rhodes v Dawson in the following year — that a defendant in libel is unable to demand security for his costs just because the plaintiff is poor, or insolvent, or even if he is an undischarged bankrupt. The only occasion on which security can be demanded is where the plaintiff resides outside the court's jurisdiction and has no seizable assets within it. In other words, a defendant is expected to mount a costly defence at the whim of any Tom, Dick or Harry with or without a good case, with 1119 guarantee of getting his costs back in we event of his defence succeeding. One way round this might be the insane suggestion, put forward by the Editor of the Sunday Times, that plaintiffs in civil libel actions be eligible for legal aid (I doubt whether Ms Redgrave would be eligible for it, however) but I am reluctant to waste time pointing out the absurdity of this. Another might be to permit the form of barratrY which is perfectly legal in the United States whereby lawyers work for an agreed Per' centage of damages, with a rider that plaill; tiffs lawyers pay the costs of a successfa` defence. I doubt this suggestion findiag much favour with the legal profession, h0°' ever. Finally, there is the obvious solutioti that in actions involving anything so elusive, abstract and undistrainable as the piaintift,s reputation,a bond for defence costs shoillu be deposited in each and every case. int Those who take a different view hlir fairly point out that all my suggestions fer reforming the libel law tend to deter tiffs from suing, or in the event of the doing so, tend to make it harder for theta t° win, or, in the event of their losing, tend te make them yell. It could be represented ts, an unstatesmanlike view, and might explar why I have never been offered the editot. ship of The Times, despite occasional biatsi; In fact most responsible journalistic opi1i0„1 is against me when I argue for raclie: reform of our libel laws, although Brit stands out as the only country where Os degree of Press discipline is thought neees' sary. In an unseemly exchange which toe! place on the correspondence page of t'ef New Review a few years ago, the editor 0 the Sunday Times accused me of advocat a Licence for Liars, and in a sense, althot18 I shrink from his lurid, alliterative Englisb' he is perfectly right. What neither he a't any of the deferential press establishi1e,r1., seem able to grasp is that freedom t0,1; imposes its own restraints. A disrepilta': journalist writing in a disreputable paper will simply not be believed. If I he chosen to sue the Daily Express for its libe of a few weeks ago, it would seem a Pc fectly reasonable defence — at any rate mitigation — for the editor to plead that newspaper is so disreputable and so bishy that nobody could possibly believe IL; or, if someone was so stupid as to behevii it, he would almost certainly have forgottfis it within the hour. Unfortunately, t"0, defence does not exist, and it is only withino system of imposed restraints, where Ii.. newspapers are supposed to be equallY re able, that liars cause damage. Nvs In Italy and the United States, where .110 of libel are much laxer, newspapers imPe),,, their own ethical standards or lack of the But it is a characteristic of the cap,. budgerigar that it cannot understand tat; idea of freedom, and shrinks from it. 1:4 sadness is that these pretty captive preelli"tir birds should present themselves as 0 leaders.
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