See you in court

Helen Searls, legal coordinator of LM's defence against ITN's libel writs, explains why this defendant is anxious to speed up the case

The desire to speed up this case does not come from any kind of perverse enjoyment at being prosecuted. If ITN dropped the case tomorrow everybody at LM would be delighted. But given that it shows no signs of so doing, getting on with the case is really our only option.

In practical terms the libel case hangs over LM like a black cloud. The magazine has gone from strength to strength over the past 18 months, but it is difficult to plan ahead with the possibility of bankruptcy looming. Who is going to put serious money into a venture with that kind of uncertainty hanging over it? Of course LM ought to defeat ITN's libel action, but who is going to bet on that given the plaintiff-friendly character of libel law?

The drawn-out character of this case also illustrates one of the worst things about Britain's libel laws: the way they act as a gagging order to 'chill' public debate on important issues.

ITN is suing LM's editor and publishers over Thomas Deichmann's article, 'The picture that fooled the world', published in February 1997. Deichmann's article alleged that the famous ITN picture of a Bosnian Muslim caged behind barbed wire in a Serb-run camp in Trnopolje, northern Bosnia in 1992, created a misleading impression, convincing the world that there were Nazi-style concentration camps in Bosnia.

The details of the original article and this libel action have been fully discussed in past issues of LM (and they can also be found on the LM Online website at http://www.informinc.co.uk/ITN-vs-LM/). Here we need only note that Deichmann's revelations are well researched, extremely serious and deserve full public exposure. In recognition of this, LM's editor Mick Hume challenged ITN to show the unedited rushes of Trnopolje camp, to debate the issues raised, and to let people decide for themselves. Instead, ITN sued LM for libel.

The libel writ itself has proved an effective weapon in keeping Deichmann's revelations under wraps in the UK. While the media in America, Canada and across Europe have debated the significance of the story, ITN's libel action effectively killed this embarrassing story in Britain, where only ITN and its supporters have had the privilege of putting their side of the story in the mainstream media. With a few honourable exceptions (see for example Michael Gove's article in the Times, 13 October 1998) most news organisations have shied away from publishing LM's story for fear of facing a libel writ themselves.

Journalists, filmmakers and broadcasters constantly approach LM to 'do the story'. But every time a journalist attempts to 'tell all', the story gets spiked by fearful lawyers anxious to avoid costly libel suits from a multimillion-pound organisation like ITN. There is a keen interest in the affair, as evidenced by a packed 'off-the-record' seminar about the case for journalists and lawyers, organised by LM at the end of September. But ITN's drawn-out libel action has meant that virtually all public discussion on this matter is effectively banned. We remain in suspended animation between the libel writ and the trial.

ITN's action against LM also threatens the very existence of the magazine through the potential bankruptcy of its editor, its publisher and the publishing house. There is no legal aid in libel cases. The case has already cost LM magazine more than £50 000, and that is nothing compared to what it could cost to fight the case in the High Court. Were it not for the staunch support of LM friends and readers, the magazine would already be bankrupt.

And as if that were not bad enough, the peculiarity of the ITN action threatens free speech in an even more pernicious way. Not happy simply to sue LM for old-fashioned libel, ITN has now added the charge of malice to its action. In what leading libel specialists have called an unprecedented use of the law, ITN is attempting to deny LM the normal means of defending itself.

Defendants can defeat libel actions if they can demonstrate that the words complained of are a matter of opinion on a public matter. Even Britain's draconian libel laws do not deny defendants the right to express an opinion providing that opinion is based on fact. This defence is called 'fair comment'.

Fair comment, however, fails as a defence if the plaintiff can prove that the defendant acted maliciously or had an 'improper motive' for publishing. The improper motive normally cited is that the defendant was motivated by malice due to his ill will or spite towards the plaintiff. And the usual evidence for this is that a defendant published an article knowing it to be untrue.

But ITN is not using the law in the normal way. The corporation has found a new argument for denying LM writers the right to express their opinions. It is claiming LM was malicious - not because LM knowingly published a lie, but because ITN thinks that LM's political approach was 'improper'.

ITN's attempt to use the law in this way has disturbing implications for free speech. Never mind that the political approach ITN attributes to the magazine is a bizarre fantasy of its own making. Why should any political stance - however daft - be a reason to prevent people expressing their opinions on public matters? Were ITN's charge of malice to succeed the rights of all to put forward a political opinion - especially an unpopular one - could be severely curtailed.

We are anxious to get to court to clear the decks and enable all of these matters to be up for full public discussion. Not only should Deichmann's allegations be answered, but people should know that the leading commercial news provider in this country is doing its bit to tighten censorship. None of this will happen while the case proceeds at the torturous pace that it has to date.