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An Englishwoman in Washington: The Insider story

The furore surrounding the latest Al Pacino movie The Insider is a stark reminder of the difference between attitudes to free speech in the USA and the UK. Offended parties have threatened filmmaker Disney with libel suits, claiming that the film is untruthful. But despite the protestations, it is widely accepted that Disney will come out of this fight unscathed and the show - or in this case the film - will go on.

The Insider is based on real events, but told with a degree of poetic license. It tells the story of Jeffrey Wigand, who blew the whistle on his former employer - the tobacco company Brown and Williamson. Wigand claimed that the CEO lied to Congress about the company's knowledge of the addictive nature of nicotine. At great personal risk Wigand is persuaded to 'tell all' by a producer on the CBS news analysis programme 60 Minutes; but just before transmission the CBS executives get cold feet. Fearing legal action from Brown and Williamson they pull the programme.

The Insider depicts Brown and Williamson as liars and bullies and the CBS bosses as cowards. Not surprisingly, both parties have tried to limit the film's damage. Lawyers for Brown and Williamson threatened to sue Disney for libel, and have been busy polling audiences to see to what extent the film damages the company. The CBS executives apparently demanded to see the script and view the final cut in an effort to obstruct the making and final release of the film. But what makes this row so interesting to those familiar with British libel law is that neither the tobacco company nor the news channel is likely to succeed. Should a libel action ever reach the courts (and that is highly unlikely), Disney has every chance of winning the case - despite the fact that individuals and companies are identified by name, and the storyline switches between real events and fiction.

Disney can be confident about its success because American defamation laws - while far from perfect - are very different to their British counterparts. Free speech is protected here by the First Amendment to the American Constitution, and US courts have historically acted to restrict the capacity of libel plaintiffs to silence public debate and criticism.

The most glaring difference between British and US law is the fact that public figures here have a very limited right to sue, often referred to as the public figure defence. In 1964 the US Supreme Court made its historic New York Times v Sullivan ruling, where the justices decreed that government officials could win damages in libel actions only if they could prove that the libel was published with actual malice: prior knowledge that the libel was false, or with reckless disregard as to whether it was false or not. This ruling has since been extended to all public figures - be they individuals or public entities like a news corporation or a tobacco company. Unlike the British courts, US law recognises that public figures have ample opportunity to answer their critics. It is generally felt that society is served better by debate than silence.

Even when private individuals are involved, US courts still demand that the plaintiff proves that publishers acted negligently. This is a lower standard than the actual malice proof demanded for public figures, but more demanding than the British standard, which simply asks the plaintiff to prove that the libel was published. In contrast to Britain, US libel laws allow the media to make genuine mistakes. In December 1999 the New York State Supreme Court extended the public figure defence to a broader 'public concern' defence that may be adopted by other states in the USA. The court ruled that if a matter of public concern is raised, even if it involves a private individual, the plaintiff will have to prove in court that the accused was 'grossly irresponsible' in printing the articles - setting a far higher hurdle than simple negligence.

The result of these differences means that the scales are tipped in favour of defendants in most US libel cases. One authoritative study shows that 90 percent of all libel cases were either won by media defendants or kicked out of court before even going to trial. This is almost exactly the opposite of the balance in the UK, where about the same percentage of cases is settled in the plaintiff's favour.

Of course not everybody is enamoured with the US approach. Many plaintiffs are astounded that courts refuse to hear their claims. The former mayor of Miami is still smarting from the fact that his case against the Miami Herald, which called him 'loony', 'deranged' and 'paranoid', was thrown out this December without a trial. Defendants are also critical of the existing law. Editors say that the focus on whether their journalists acted negligently or maliciously is an unwarranted intrusion into their work practices. Others argue that plaintiffs still use the law to silence the media, since US courts do not award costs. Newspapers and magazines can go bankrupt simply by the expense of getting a frivolous case thrown out of court.

But coming from the British perspective there's a lot to be said for the US system. Debate isn't stifled here. Even rumour and misinformation have to be answered rather than buried by a court case or sub judice laws. I have to admit that I was pleased to read recently that even the most notorious gossip-mongering rag, the National Inquirer, has not one single libel action outstanding against it.

Helen Searls

Reproduced from LM issue 127, February 2000



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