No ordinary libel case
ITN has raised the stakes again in its libel case against LM. The news corporation's latest legal submission accuses the magazine of 'express malice' - a charge which carries the threat of punitive damages if accepted by the courts.
Helen Searls argues that ITN's latest move not only threatens to close down LM magazine and bankrupt its editor and publisher; it also represents an ominous new use of the libel laws to impose yet further restrictions on free speech
In January ITN issued LM with a writ for libel, after the magazine published an article by the German journalist Thomas Deichmann which raised embarrassing questions about ITN's award-winning reports from a Bosnian camp ('The Picture That Fooled The World', LM, February 1997). Readers will know that LM vigorously denies this charge and has contested the case from the start.
In July, however, ITN levelled a new accusation against LM. In a legal document dated 14 July, ITN accused LM of being 'actuated by express malice' in publishing Deichmann's article.
Being 'actuated by express malice' sounds painful, but what exactly does it mean? As the less-than-snappy terminology indicates, the law relating to malice in libel cases is derived from the nineteenth century. To make sense of the charge it is necessary to get behind the Dickensian phraseology and explore what malice means in libel law.
In an ordinary libel case the motive or intention of the person accused of publishing a libel is irrelevant. As many defendants learn to their cost, libel courts are rarely interested in what you meant to say or what you were thinking when an article was written. Trials centre on what the contested words are reasonably capable of meaning to an average reader. If the plaintiff can convince a jury that particular words are capable of an unintended but defamatory meaning then, in law, the plaintiff has every right to sue for libel on the basis of this meaning, even though the author never meant to say that. Many defendants have had a tough time defending the unintended meaning of their writings.
Motive is taken into consideration, however, if the plaintiff can demonstrate that the defendant was motivated by 'express malice'. In English law 'express' or 'actual malice' is defined as ill will or spite towards the plaintiff or any 'indirect' or 'improper motive' in the defendant's mind at the time of the publication. For the plaintiff to succeed in this charge he has to demonstrate that this 'improper motive' was the sole or dominant motivation for publishing the words complained of.
If the plaintiff can prove that the writer or publisher of defamatory words was driven by such improper motives, it has serious consequences for the case. For a start establishing malice can defeat the defence of 'fair comment', which many defendants in libel actions rely upon. It is an effective defence when the alleged libel is a matter of opinion, on a matter of public interest and based upon true facts. It must, though, be an opinion which, objectively, any person could honestly hold. If malice is established then the defence of fair comment will fail. The defendant can no longer claim that his opinion was honestly held since his motives are no longer considered honest.
The other major effect of establishing that the defendant was motivated by malice is that aggravated damages will be awarded to the plaintiff. A libel motivated by malice is considered worse than a non-malicious libel, and so the courts award plaintiffs larger sums in damages. An award of aggravated damages could easily double the amount of money that the defeated defendant has to pay to the plaintiff. In 1995, for example, football manager Graham Souness sued Mirror Group Newspapers over an article about the break up of his marriage entitled 'You Dirty Rat'. He was awarded the spectacular sum of £750 000 in damages when he won the case, including aggravated damages due to the defendant's conduct and behaviour throughout the case.
In nearly all cases where malice is contested, establishing malice comes down to the plaintiff proving that the defendant published something that he knew to be untrue. Publishing known lies is taken as clear evidence that the defendant acted maliciously. In contrast, if the defendant believed what he said was true - however unreasonable, irrational, stupid, obstinate, prejudiced or exaggerated the belief - then the charge usually fails. Occasionally, however, the plaintiff tries to cite different evidence for malice. If the plaintiff can prove to the court that some other 'improper motive' preoccupied the defendant, then, even if the defendant believed the libel to be true, the charge of malice may stick.
When plaintiffs introduce the charge of malice into a libel case they have to give particulars of the evidence that they will rely upon to prove their case. ITN has done just this in its document of 14 July. In this document ITN makes no attempt to prove that LM knowingly published a lie (nor could they, since LM's editor and publisher stand by every word of Thomas Deichmann's article). This then is not an ordinary charge of malice. Rather ITN is attempting to prove that an alternative 'improper motive' affected the minds of LM's editor and publisher.
According to ITN, LM's improper motive was politics. In a lengthy reply to LM's defence ITN claims that a particular political approach was the 'sole' or 'predominant motive' for publishing the Deichmann article. And as evidence of this allegedly malicious motive its lawyers cite over 40 articles that have appeared in LM on the subject of the Bosnian war. ITN lawyers try to identify LM's distinct approach towards this war, and attempt to argue that this approach is sufficient reason to charge the magazine with malice.
Specifically ITN contends that the Deichmann article was published by LM
'with the sole or predominant improper motive of:
This new use of the charge of malice has disturbing implications. Of course it is the court that will decide whether there is any validity in law to ITN's claim, but the very fact that ITN even cites this as a legitimate charge is a worrying sign of the times.
a) fuelling its campaign of pro-Serbian propaganda by smearing Western journalists who publish or broadcast reports which are critical of Serbian conduct and/or harmful to the Serbian cause in the Yugoslav conflict; and
b) thereby hoping to further the cause of revolutionary communism and/or Marxist ideology by publicly exposing "imperialist" and "capitalist" Western powers such as the USA, Britain, France and Germany, together with their mouth pieces in the Western media.'
As an aside it is worth mentioning that ITN does not begin to understand LM's approach to reporting the civil war in the former Yugoslavia. For the record LM never championed the Serbian or any other cause in Bosnia. Nor has LM fuelled any campaign 'by smearing Western journalists who were critical of Serbian conduct'. LM published Deichmann's article because it raised important questions on a matter of great public interest. The magazine took no sides in the Bosnian war and only criticised journalists when it had good reason to believe that they had acted less than professionally. LM's concern in the Bosnian civil war was that the demonisation of one side - the Bosnian Serbs - was used to justify Western involvement. Since LM writers believed, along with some other serious commentators, that Western involvement only prolonged the conflict, the magazine was critical of anything that lent legitimacy to Western intervention.
But let us put these important objections to one side for a moment, and take ITN's accusations as they stand. Its charge of malice raises some disturbing questions about press freedom and freedom of expression. Is it really 'improper' for a publication to have a political motive for publishing certain articles? What if LM writers really were rabid Serbian nationalists, or really were stupid enough to believe (as ITN alleges) that the Bosnian Serb nationalists were the last hope for Marxism on Earth? Does that mean that we should be charged with malice for publishing an article in good faith that happened to aid our political cause? And can a distinct political approach really be reduced to 'malice' because others find those politics objectionable?
ITN's charge of malice means that it deems that the political arguments presented in LM (or rather, its caricature of those politics) do in fact constitute an improper motive for publishing an article. Throughout the 23 page reply ITN's lawyers quote numerous past LM articles that argue against the demonisation of the Serbs and against Western intervention in the war. These are quoted as clear proof of LM's improper motive. I was, incidentally, surprised to see that one of my own articles was cited as evidence of LM's improper motive. In a recent issue I documented how I thought the recent trial of Dusko Tadic at the International War Crimes Tribunal at The Hague was a miscarriage of justice. Why such an argument should be taken as evidence of malice I am unclear.
It is hard to imagine the charge of malice being levelled against other publications with a distinct political approach. The Guardian for example has defended itself in a string of high profile libel cases against ex-Tory ministers, but nobody ever thought to charge the Guardian with malice for writing such articles. Undoubtedly one reason the Guardian published revelations of sleaze in the Tory party was the newspaper's own political agenda. The Guardian has promoted itself as the exposer of sleaze in high places and made no secret of the fact that it was keen on a Labour victory at the last election. There was never any suggestion that these things constituted improper motives for running their exposé articles. Nor should there have been. It is entirely legitimate that newspapers and magazines have political affiliations and publish articles and exposés that promote their own views.
So why has ITN taken the unusual step of adding malice to its libel suit against LM? Of course we can only speculate as to its motives, but surely it cannot simply be that LM is a political magazine and promotes views that its writers believe in. There must be something more to it than that. In my opinion the problem is not that LM has a distinct political approach, but rather that LM writers have views and opinions that are somehow unacceptable to respectable society. It is this assumption of unacceptability that underlies the charges that are now being levelled against the magazine.
Since the moment the writ was served, supporters of ITN's libel action have insisted that the case against LM is no ordinary libel case. Ed Vulliamy of the Guardian/Observer alleged that LM's motives in publishing the article were 'diabolical' and cited ITN editor in chief Richard Tait as saying this was a case of 'good against evil, (Frank, October 1997). The implication is that LM not only published a libellous article but put itself beyond the pale, outside the boundaries within which respectable political ideas can be discussed. By attempting to label LM's politics as 'malicious' ITN is now pursuing this line of attack in the courts. By reducing a serious political opinion to malice - that is 'ill will' or 'spite' - ITN is trying to get the court to endorse its demonic view of LM and all that it represents.
In my view the fact that ITN's specific characterisation of LM's politics is grossly inaccurate is really secondary here. Who is to say that any political approach is so 'improper' that one should be punished for publishing what one believes to be true? Where does this leave the right to free speech and press freedom? ITN claims that LM's presentation of this case as an attack upon press freedom is 'specious and self serving'. But the right to free speech is not just something that LM has dreamed up. It is an important right that democrats and civil libertarians have always championed.
The right to free speech means nothing if only popular ideas and mainstream arguments are to be protected. People never want to punish ideas they agree with. It is how we treat ideas that we find unpopular or offensive that is the true test of commitment to this right. As the eminent nineteenth-century writer and civil libertarian, John Stuart Mill put it, 'We can never be sure that the opinion that we are endeavouring to stifle is a false opinion; and if we were sure it would be an evil still....Complete liberty of contradicting and disapproving our opinion is the very condition which justifies us in assuming its truth for purpose of action'.
If ITN win this libel case, and malice is established, the defendants - LM editor Mick Hume, publisher Helene Guldberg and LM's publishing company - will be liable for aggravated damages. If LM is not financially wiped out before it gets to court then it will be destroyed if it loses the case. Mick Hume and Helene Guldberg will also be driven into bankruptcy. By setting out to win aggravated damages ITN has let it be known that it is out to cripple LM and punish those responsible for it. It seems that ITN will not be happy until it has extracted every ounce of its pound of flesh.
Punishing critics in this way goes further than even McDonald's did in the infamous McLibel case. McDonald's is often described as the ultimate bully when it comes to libel cases. It took two penniless eco-activists to court and sought to silence their criticisms of the burger company. But even McDonald's at least publicly said that its motive was simply to put the record straight. It claimed that it was not interested in damages or in destroying its opponents. And at the end of the trial it said it would not pursue its damages award. Obviously McDonald's had its own PR reasons for taking this line, but it is interesting that ITN doesn't even pretend to play this game. ITN wants to punish LM. It has put LM on notice that its action is no longer simply about correcting the original Deichmann article. It now wants to pursue LM for having a bad attitude.
Helen Searls is the legal coordinator for LM's defence campaign
Reproduced from LM issue 105, November 1997