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Other LM articles
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
No ordinary libel case
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
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
'with the sole or predominant improper motive of:
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.'
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.
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
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
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
Helen Searls is the legal coordinator for LM's defence campaign