Truth, drugs and libel laws

If everybody knows that Olympic athletes like Flo-Jo take performance-enhancing drugs, asks John McVicar, why should journalists have to stay silent for fear of a libel writ?

Flo-Jo exhibited every pointer to the use of performance-enhancing drugs. She put on a remarkable amount of muscle in a very short time, she improved extremely rapidly and rocketed up the ratings. The woman who took silver in the Seoul 200-metre final, Grace Jackson, said after Flo-Jo died: 'My thoughts going into the games were that there was Florence and then there was the rest of us, because her performances were significantly different from what other sprinters were managing. Her improvement had been drastic over a very short period of time and we all started to question how this was possible.'

Yet Jackson also said, 'I have learned over the years that you cannot accuse people of using drugs until they are caught'. And here is the rub: the libel laws prevent us from even having a proper public discussion about whether or not a particular athlete's performance and appearance is indicative of the use of performance-enhancing drugs. All the indications can point to one conclusion, yet journalists cannot draw that conclusion unless the athlete fails a urine test. The problem with this criterion is that, as the career of athletes like Flo-Jo demonstrates, the urine test is easily circumvented.

Auberon Waugh once claimed that 'the purpose of the libel laws is to protect rich crooks, politicians, people in authority and vain millionaires'. In an interview in the Caribbean Times about Linford Christie's then impending libel action against me, I used Waugh's quote and added 'wealthy athletes' to his list. Athletes are increasingly turning to the law to restrict comments about the possible use of performance-enhancing drugs.

Our libel laws lay down the rules by which journalists and their legal advisers can publicly accuse somebody of wrongdoing without falling foul of an action for defamation. I often find myself working at the borderline of what is defamatory and, like many journalists, write with a libel reader looking over my shoulder. All sorts of considerations come into play, and there is often a fascinating, unpublished process behind what appears in print or on TV.

However, the bottom line is how well the journalist can stand up his story. What is the quality of his evidence? Journalists always know more than they can prove, but what is critical in this debate is the standard of proof that is required to publish and not be vulnerable to a defamation writ. Clearly the public interest is served by there being some legal protection of reputation, but there are solid grounds for arguing that freedom of speech is of higher value than the protection of reputation.

The US jurist Ronald Dworkin has argued that free speech is based on 'a collective bet that free speech will do us more good than harm over the long run'. If one agrees, then at the borderline of the level of proof required for publication, there should be a disposition in favour of freedom of speech.

Yet our system is biased against the defendant's right to free speech and towards the reputation of the plaintiff. For instance, when a libel jury is unable to decide whether or not the evidence proves that the plaintiff has been defamed, the law says that the issue must be resolved in favour of the plaintiff! Similarly, once it has been established that an article is capable of being defamatory, then it is up to the defendant to prove his case. This runs against the grain of our general judicial process, which presumes that a defendant is innocent until the prosecution has proved him guilty.

The disposition in favour of the plaintiff is also reflected in how libel judges make rulings at trial. Since libel trials are civil rather than criminal cases, the defendant should have to meet only the civil standard of proof - that he is right on the balance of probabilities. However, in practice, judges' rulings in libel trials often push things more towards the criminal standard of proof, requiring the defendant to prove his case beyond a reasonable doubt.

In the libel trial between myself and Linford Christie, which took place over three weeks in June, there was a good example of how this further handicaps the defendant.

Christie sued over an article that I had written in 1995, in a soon-to-be defunct underground magazine called Spiked. Its editor/proprietor was killed in a car crash the following year. This left me defending the action on my own and, due to the prohibitive cost of libel cases, representing myself. The issue was whether Christie has systematically taken performance-enhancing drugs. Due to my procedural mistakes in the run-up to the trial, a lot of my evidence was ruled inadmissible. This included a physiotherapist to the Olympic team who had treated Christie, and also an athlete who trained with Christie under the latter's coach and who, the year before, had appeared incognito on a Panorama programme claiming that all Olympic sprinters, including himself, took performance-enhancing drugs. I had secretly tape-recorded this athlete talking about such issues. The trial judge ruled that this athlete could only give evidence about his own drug taking, not about anybody else's. In the event I did not put him in the witness box.

Now, the standard of proof relied on by the athletic authorities for evidence of the use of banned drugs is whether the analysis of a sample of the athlete's urine detects their presence. When a banned drug is detected, this amounts to a standard of proof at the 'beyond a reasonable doubt' level. It is certainly well above the 'balance of probabilities' level.

Christie had passed over 100 tests, and this was presented as copper-bottomed evidence that he had been a squeaky-clean athlete. My attempt at proving otherwise was to argue that the urine test was flawed, easily circumvented and could not even test for the presence of several potent performance-enhancing substances. My case was to ask the jury to use other, non-test criteria in considering whether such substances had been used: criteria such as unnatural gains in weight, musculature and performance, plus, in the case of Christie, a career of remarkable athletic longevity. Christie, rightly under our defamation laws, won the case when the jury rejected my arguments about him by a majority of 10-2. Although majority verdicts were introduced in 1967 to stop gangsters from jury nobbling in criminal trials, for some reason they are also allowed in civil cases, where they favour the plaintiff. Christie did not ask for damages but was awarded costs.

However, in his directions to the jury, trial judge Mr Justice Popplewell ignored my general argument about the different standards of proof that should be applied in deciding whether journalists could reasonably raise questions about athletes taking drugs. In so doing he insisted upon a standard of proof that is much more in keeping with a criminal trial. The wider consequence of this, going way beyond the Christie case, was to affirm that sports journalists are precluded from using non-test criteria to say that there are good grounds for suspecting an athlete of using performance-enhancing drugs.

This means, for example, that while Ben Johnson could be pilloried by the press for failing a drugs test after he won the men's 100 metres Olympic gold in Seoul, nobody could voice their reasonable suspicions about Flo-Jo because she passed her test after winning the women's 100 metres at the same games. It means that an athlete like Michelle de Bruin (nee Smith), the dump-truck swimmer from Ireland, who won three gold medals at the last Olympics, can meet the non-test criteria for drug taking to an unnatural degree, and no journalist could draw the inference. Of course, we can now all say that she used performance-enhancing drugs because de Bruin failed a drug test in January. However, until then the risk of libel, and the way this influences libel readers prior to publication, meant that she was never so accused in the English press. This is known as the 'chilling effect' of our libel laws.

In an attempt to encourage the jury to take into account the way that this chilling effect inhibits sports reporting, I claimed that in the interests of fostering a drug-free athletics sports journalists should be empowered to use non-test criteria. My argument was that, given the fallibility of the urine test and the evidence of widespread use of performance-enhancing drugs among elite athletes, journalists should be allowed to publish on the basis of a lower standard of proof. They should be able to use non-urine test criteria to suggest that an athlete might be using performance-enhancing drugs. I claimed that this was a public issue and that the jury should bear this in mind when deliberating. However, the judge ruled in his summing up that this was not a public issue and that they should put this out of their mind.

This is a corollary of how our libel laws do not admit a public figure defence. The public figure defence developed in America so that public debate on important issues could be, in the words of US Supreme Court judge William Brennan, 'uninhibited, robust and wide open'. The effect is to make public officials, and also corporations and even celebrities in America, rather more fair game to media criticism than they are over here. The justification is that democracy is enhanced by a disposition in favour of free speech.

Libel trials are intellectually demanding, emotionally draining and, because of their exorbitant costs, inevitably turn into tea parties for lawyers. Thus our defamation laws both favour the rich and powerful and are for all practical purposes an option open only to them. There have been many examples of our libel laws becoming the cat's-paw of wrongdoers who can hire the lawyers. Robert Maxwell - crocodile tears in the witness box too - obviously used our defamation laws to his own ends. And there are other examples, such as MP Tom Driberg and entertainer Liberace, where plaintiffs have blatantly lied but been vindicated by the libel jury. Tory minister Jonathan Aitken's lies might also have prevailed if the last-ditch discovery of who really paid the Ritz hotel bill had not caused his libel action against the Guardian to collapse.

One recent survey confirms suspicions that an intolerable number of successful libel actions are miscarriages of justice: in 200 cases studied between 1986-96, the defendant prevailed in only 20. Of course, this ignores the much greater pre-trial traffic in injunctions and threats of legal action, which stifle publication of accusations of wrongdoing.

There are calls for the reform and even repeal of our defamation laws. But even among the media, libel reform remains a sotto voce issue. One reason why we soft-pedal our own cause is because we are held in disdain by such a large section of the public: 76 per cent in a recent MORI poll said they do not trust journalists to tell the truth. Certainly the higher judiciary regards journalists as little better than guttersnipes who, while they have a role in society, must be kept whwere they belong. The contempt with which Justice Popplewell treated sports journalists in my own libel trial was a reflection of this.

Part of the reason why the press is held in such contempt stems from the outrage over press intrusion into the private lives of celebrities. None the less, the Aitken case offers a disturbing insight into how such public disdain serves the interests of wrongdoers among the rich and powerful rather than the real interests of the public.

Was it hubris or merely arrogant realism that in June 1997 led a rich, powerful and clever man like Aitken to announce his action against the Guardian, with the claim that he intended 'to cut out the cancer of bent and twisted journalism in our country with the simple sword of truth and the trusty shield of British fair play'? I would suggest it was realism. Aitken was confident because the nature of British libel laws gave him good cause to think that he could lie and lie and lie but still win in our courts.

Excercising his right: John McVicar