The only thing this case has proved 'beyond reasonable doubt' is that English libel law is a disgrace to democracy and a menace to a free press
This could be the last issue of LM. I write the day after the High Court ordered us to pay ITN and two of its journalists a total of £375 000 in damages, at the end of the libel case they brought over the article 'The picture that fooled the world', written by German journalist Thomas Deichmann and published three years ago in LM. Even before the huge bill for legal costs is added on, those damages will be more than enough to bankrupt me, the magazine's co-publisher Helene Guldberg, and the publishing company Informinc (LM) Ltd.
Those who know LM will appreciate that we do not intend to go quietly into the night. As the front cover of this issue puts it, despite three years of smears and Britain's loaded libel laws, we're still here - the mag they could not gag.
Let me make clear what that means, for the benefit of ITN's army of lawyers who will no doubt be crawling over this article. We are not going to put ourselves in contempt of court by repeating the defamatory allegations from the libel case. But we will not be silenced, either. Whatever happens, the project LM has pursued over the past three years, of trying to set a new agenda for public debate, will carry on one way or another. And everybody involved can rest assured that the programme of LM-initiated events planned for the summer - the month-long Institute of Ideas and the series of debates at the Edinburgh festivals - will definitely go ahead. There is life after a libel trial.
None of that, however, is intended to minimise the implications of the libel case for LM, or for the wider cause of press freedom. As I said on the steps of the High Court after the verdict, the only thing that this case has proved 'beyond reasonable doubt' is that English libel law is a disgrace to democracy and a menace to a free press. The unprecedented use of that law by a major news organisation against an independent magazine should be enough to send a chill through the world of investigative journalism.
Everybody surely ought to know by now that losing a libel trial is not the same thing as being proved wrong. Although we were confident of our case, we never assumed that it would be easy to win under the libel law as it stands in this country: a system that gives defendants only a one-in-10 chance of success in court. As libel defendants, we were assumed to be guilty unless we could prove our innocence - the reverse of natural justice. And as libel defendants with no money (there being no legal aid for defamation cases), facing a multimillion-pound corporation, the odds were stacked even more heavily against us.
Almost from the moment ITN issued its threat of legal action against us, in January 1997, LM and those associated with it have been the targets of countless smears and dark rumours, alleging for instance that we are funded by every contemporary bogeyman from Milosevic to Monsanto. There is no suggestion that any of these smear stories originated from ITN. What is a matter of record, however, is that in July 1997 ITN added a charge of malice to its libel case, alleging that LM had published Thomas Deichmann's article 'with the improper motive of fuelling its campaign of pro-Serbian propaganda by smearing Western journalists...thereby hoping to further the cause of revolutionary communism and/or Marxist ideology'. For almost three years before the case, these ridiculous allegations hung over the magazine and clouded discussion of the issues involved. Yet when the case finally came to trial, the malice charges were first toned down and then quietly dropped.
At the pre-trial review in February, Justice Morland first made clear that the case would not be about the issues of free speech or journalistic standards raised by LM, and then ruled that all of our expert witnesses - including John Simpson of the BBC, Philip Knightley and a leading QC - could not give evidence. This meant that, when the case came to trial, it was 18 ITN witnesses versus me and Thomas Deichmann, which is presumably what the courts consider a 'level playing field'.
Despite all of this, however, our barrister Gavin Millar managed to establish in court, through the cross-examination of ITN witnesses, that the central fact in Deichmann's article, concerning the position of the barbed-wire fence at Trnopolje camp in relation to the journalists, was true. As Justice Morland said in his summing up: 'Clearly Ian Williams and Penny Marshall and their TV teams were mistaken in thinking they were not enclosed by the old barbed-wire fence', before adding in his even-handed way, 'but does it matter?'. Or as Nick Higham reported it on the BBC news that evening, 'Mr Justice Morland told the jury LM's facts might have been right, but he asked, did that matter?'.
From LM's point of view, that dismissal of our 'facts' was as good as the judge's summing up got. The rest of it was so one-sided that it made ITN's own overpaid barrister redundant. It reached its nadir when, having quoted extensively from the evidence ITN witnesses gave in the box, the judge told the jury that he was not going to remind them of anything Mr Hume or Mr Deichmann had said, because we were not there at Trnopolje camp on 5 August 1992. The implication that eyewitness accounts cannot be challenged after the event, a theme which ran through ITN's approach to the case, could have serious consequences for critical journalism.
Justice Morland then advised the jury that if they found against us they would have to decide the level of damages. He told them that somebody who lost both arms in an accident might expect to receive compensation of £100 000, and then said that to award the ITN journalists more than £150 000 for their damaged reputations and hurt feelings would be 'excessive'. The judge also said that damages would be aggravated if the defence had strenuously cross-examined the claimants. In other words, the more stoutly we defended ourselves, the higher price we would have to pay - further proof of how the libel laws protect freedom in our society.
It was hardly a great shock, then, when we lost the case. As a stout defender of the jury system, I do not really blame the 10 men and two women who voted against us after four hours of deliberation. We could not win because the law demanded that we prove the unprovable. As the question the judge put to the jury asked, 'Have the defendants established that Penny Marshall and Ian Williams had compiled television footage which deliberately misrepresented an emaciated Bosnian Muslim, Fikret Alic, as being caged behind a barbed-wire fence at the Serbian-run Trnopolje camp on 5 August 1992 by the selective use of videotape shots of him?'. With the judge repeatedly emphasising the word 'deliberately', we were being asked to prove what was going on inside the journalists' heads eight years ago. The jury was only likely to come to one verdict.
We have apologised for nothing, but we are not going to appeal. Life is too short to waste any more time in the bizarre world of the libel courts. We never wanted to get involved in this case. The polished-wood atmosphere of Court 14 at the Royal Courts of Justice is no place for journalists to debate such important issues. As I told the judge and jury in the witness box, I believe that people should have the right to judge the truth for themselves in the court of public opinion. What we are allowed to read or hear should not be dictated by ITN, their lawyers, or even the High Court. Exactly what Mr Justice Morland thought of my irreverent intervention was not recorded.
There is now an injunction preventing me from going into any further detail about the story of Fikret Alic, the barbed-wire fence and the journalists at Trnopolje. Fair enough - I have no wish to make it my lifetime's work. But I will continue to raise the broader concerns which led us to publish Thomas Deichmann's article in the first place and, reluctantly, to fight the legal case: concerns about press freedom, journalistic standards, and the exploitation of the Holocaust.
The last of those three issues remains particularly close to LM's heart. We have published many articles pointing out the dangers of today's unhealthy obsession with the Holocaust. Which made it all the more infuriating to read Ed Vulliamy's screeching feature in the Guardian the day after the verdict (especially coming after Julia Hartley-Brewer's fair reports of the case in the same paper), in which he branded LM 'the tinpot Holocaust denier'. In fact, as I said in my evidence during the trial, it is precisely because LM is concerned to counter the rewriting of history that we have pointed out how dangerous it is for people like Vulliamy to compare the Bosnian civil war to the Nazi genocide. 'The Holocaust is an absolutely unique horror in history', I argued then, 'the great crime of the twentieth century, and if you start putting it on a par with civil wars of today you can only diminish its horror, I think, and you do a disservice to the victims of the Holocaust by making those kind of inappropriate comparisons'.
As for the issue of free speech, I want to thank everybody who has supported our stand against censorship over the past three years: all those who have written or worked for the magazine for nothing, and those whose donations to the Friends of LM scheme and the Off the Fence Fund have helped to finance the magazine and the libel fight respectively. And I want to thank our legal team, led by Gavin Millar, who won everything in that courtroom except the verdict.
This issue of LM has been edited by Jennie Bristow, assisted by Brendan O'Neill and the designer, Alex Cameron. Next month's issue will, I'm afraid, be edited by me, if LM is still in business by then. Whatever happens next, watch this space.
Reproduced from LM issue 129, April 2000