You Can't Read This Book: Censorship in an Age of Freedom (23 page)

English lawyers are fond of quoting Iago’s lines to Othello:

They forget that Iago is a liar, and never admit that the English law does not confine itself to defending the reputation of men and women of good standing, but will come to the aid of any criminal who is not behind bars.

In the 1980s, the most fevered writ-generator was Robert Maxwell, a conceited and crooked media mogul. After fleeing to Britain from his native Czechoslovakia, he established business relationships with the communist dictators of the old Eastern Europe. In Britain, the Department of Trade and Industry said after one of his many dubious takeovers, ‘he is not in our opinion a person who can be relied on to exercise proper stewardship of a publicly quoted company’. This condemnation, and his warm relations with tyrannies, did not prevent Maxwell from bombarding newspapers and book publishers with writs threatening to take anyone who impugned his reputation to the courts. ‘His purpose was to make it impossible for any editor of a newspaper or book to consider writing about him critically without considering the enormous cost both financially and in time wasted that would entail,’ said his unauthorised biographer Tom Bower. ‘He would come down on them with the force of a bulldozer.’ The scores of writs had their effect. When presented with leads, editors wondered whether they wanted the trouble and expense following them would entail. Those who took him on learned that sources from inside the Maxwell organisation, who had spoken to their reporters off the record, were too frightened of losing their jobs to appear in court, and that Maxwell was not above bribing witnesses outside his employ to change their testimony.

The law takes no account of the difficulty of getting on-the-record affidavits from sources in dictatorial corporations, and offers another benefit to litigants that Maxwell took full advantage of. The ordinary citizen might suppose that if a newspaper or a book publisher ran an unflattering portrait of a wealthy man, the wealthy man would sue the newspaper or book publisher. It was likely to have the resources to pay for damage to his fine reputation, after all. But nothing in English law stops the wealthy man suing the author personally, so his or her home and savings would be on the line unless they retract and grovel, or the shops that distribute books and newspapers. Maxwell calculated that the owners of bookshops or newsagents would not stock a controversial work if standing up for the freedom of publication might cost them money, and they had other titles to place on their shelves. His tactic of suing bookshops was not as violent a means of reprisal as the Islamists’ tactic of hitting them with bombs, but the intent was the same.

Which is not to say that Maxwell eased up on his direct attacks on publishers. He targeted
Private Eye
, the most courageous British news magazine, and won colossal damages from the courts. The
Eye
had the distinction of receiving his last writ, in 1991, after it reported suspicions that Maxwell was ‘gambling’ with his employees’ pensions. Sources in his corporation told its journalists that Maxwell was reducing their benefits and sacking those who spoke out. His lawyers maintained that it was outrageous to suggest that Maxwell was a criminal, who was raiding the employee pension fund to shore up the share price of his ailing businesses. Maxwell had ‘suffered a very serious injury to his feelings and reputation’, they said, as they demanded an apology with the usual damages.

A few weeks later, Maxwell either fell or jumped from his yacht. His businesses went bankrupt, and his employees found that he was indeed a criminal who had stolen £727 million from their pension fund.

The writs Maxwell issued against Tom Bower,
Private Eye
, the
Sunday Times
, the
Independent
and others were directed at stories covering his business activities. All those stories turned out to be true, or on the right lines. If they had a fault, it was that they were nowhere near as scathing as they should have been. The judges and law officers showed no regrets. They never paused to ask why the English law had punished investigations into a man who had never had a good name, and always deserved a worse one.

In 1998, the English judiciary hit its nadir when it allowed David Irving, one of Europe’s leading neo-Nazis, to sue the American historian Deborah Lipstadt for saying that he manipulated evidence to ‘prove’ that the Holocaust had never happened. Penguin defended its author, as it had defended Salman Rushdie, and had to spend several million pounds, money it never recovered. After a full trial, the learned judge – one Mr Justice Gray – announced that in his considered opinion, and after weighing all the relevant evidence, he had concluded that the Nazis were indeed a bad lot who had gassed millions of Jews at Auschwitz and elsewhere, and that Irving and others who said they had not were likely to be liars.

Where would the English be without their lawyers to guide them?

The law’s readiness to censor writers and order their publishers to pulp books and pay costs and fines weakens conservative claims that England and the rest of Europe are afflicted with an over-mighty ‘liberal judiciary’. The judges are not true liberals, but the successors to the aristocratic Whigs of pre-democratic Britain. William Hazlitt defined a Whig as neither liberal nor conservative, but ‘a coward to both sides of the question, who dare not be a knave nor an honest man, but is a sort of whiffling, shuffling, cunning, silly, contemptible, unmeaning negation of the two’. Modern judges prove Hazlitt’s point for him. After presiding over the false convictions of the Birmingham Six, the Guildford Four and other innocent men and women in the terrorist trials of the 1970s, they were obliged to learn to uphold the rights of defendants to fair trials in the criminal courts. However, when citizens are not prisoners of the state, but are exercising their right to be full participants in the deliberations of society, they shut them up. British and European ‘liberalism’ is uncomfortable with freedom of speech. Liberal judges do not have the instinctive democratic belief that citizens in open societies should be free to argue without restraint. Instead, they think they have a duty to intervene in open arguments, invariably on the wrong side. They subvert the right to freedom of speech protected by the First Amendment of the American Constitution, sanctified by custom in Britain and enshrined in the European Convention on Human Rights, as they try to create a journalism that never runs the risk of provoking the anger of the wealthy.

A prissy nervousness afflicts writers when they tackle people who can afford to sue: plutocrats, banks and corporations; or those who have a reputation for using no-win, no-fee lawyers to sue even if they are not personally wealthy themselves: front organisations for Jamaat-e-Islami and the Muslim Brotherhood, alternative-health cranks and other vexatious litigants. The people writers ought to have gone into journalism to scrutinise are the very people the law requires them to treat with exaggerated caution. Instead of writing about them with the required vigour, we switch to stilted English and pepper our pieces with ‘we are not suggesting thats’ – when we want to suggest just that – ‘allegedlys’, ‘could be saids’, ‘mays’, ‘seems’, ‘some may thinks’ and ‘appears’, inside ugly sentences that are hacked back by lawyers; when, that is, they are published at all. In newspaper offices, lawyers are powerful figures who start to worry as soon as reporters mention a litigious man. Often they spike pieces, saying that no amount of cuts and caveats can avert the risk that a plutocrat will begin lengthy and expensive litigation before a hostile judiciary.

The service the courts provided the Dutch base metals and oil trading company Trafigura best illustrates the readiness of the legal profession to censor on behalf of the wealthy. Trafigura had hired a ship to deliver toxic waste to Amsterdam in July 2007. Waste-disposal companies tested the load, noted its foul stench, and refused to touch it unless Trafigura gave them a generous fee. Trafigura would not pay, and went round the world to find a country willing to take it. The Estonians and Nigerians turned the ship away. Finally, it docked in the poverty-stricken Ivory Coast, where dealers took the waste at a bargain rate, and did not treat it but dumped it. Many people became sick, and several died.

Trafigura said the waste could not have caused the suffering. When the BBC contradicted its account, Trafigura sued for libel. The BBC backed down, and withdrew any allegation that the toxic waste dumped in Africa had caused deaths. That would have been the end of the controversy in Britain, had not Trafigura had a draft internal report – the ‘Minton Report’ – whose authors said that on the ‘limited information’ they had received the harmful chemicals ‘likely to be present’ in the waste included sodium hydroxide, cobalt phthalocyanine sulphonate, coker naphtha, thiols, sodium alkanethiolate, sodium hydrosulphide, sodium sulphide, dialkyl disulphides and hydrogen sulphide.

The report was not the final word on the dumping. Other experts had reached different conclusions, as experts are wont to do. When the case for compensating the alleged victims came to court, lawyers for the sick Ivorians could not prove that the waste had harmed them, but Trafigura could not prove that it had not, and paid compensation without admitting liability. The contest between the two sides ended in a tie. Nevertheless, news organisations facing the prospect of legal action, and the families of the dead living with ongoing grief, would have liked to have read what the report’s author had to say.

To stop the press publishing the findings, Trafigura hit the media with that ingenious legal invention, the super-injunction: a court order so secret it is a contempt of court to reveal that it even exists. Paul Farrelly, a Labour MP, ignored the judge’s ruling and tabled a question in Parliament, which stated that Trafigura’s solicitors had secured an injunction from the High Court to prevent publication of the report on the ‘alleged dumping of toxic waste in the Ivory Coast’. Trafigura’s solicitors told journalists that reporting what the MP had told Parliament, and mentioning the ‘existence of the injunction would, absent a variation to the order’, place them in contempt of court.

It is worth pausing to contemplate how many principles the English legal system was prepared to overturn. The civil wars of the seventeenth century, in which John Milton and his contemporaries lined up, concluded with the settlement enshrined in the 1689 Bill of Rights. It asserted that Members of Parliament had absolute freedom of speech, and no monarch or court could interfere with their proceedings. The radicals of the eighteenth century fought and won a hard battle to allow the press to report Parliament, so that MPs’ constituents could know what their supposedly accountable representatives were saying on their behalf.

To no avail. Only a public outcry forced a U-turn, and pushed Trafigura’s lawyers into saying that the injunction had not ‘been obtained for the purpose of restricting publication of a report of proceedings in Parliament’. Just all other reporting of the Minton Report’s contents.

The belief that ‘If you are telling the truth, you have nothing to fear’ does not apply in England. The courts say that you are guilty until you prove yourself innocent. They take no account of the difficulty in persuading confidential sources to place their careers at risk by taking the witness stand. They tell the claimant that he does not need to prove that he has suffered damage or harm. They do not consider whether the claimant has a good reputation the law is obliged to defend. They are presided over by judges drawn from the pseudo-liberal upper-middle class who have no instinctive respect for freedom of speech or gut understanding of its importance. The judges are willing to look on as claimants go for individual writers, who cannot afford to fight back, or retailers, who have no commercial interest in fighting back. The single concession they make to the democratic age is the so-called ‘Reynolds Defence’, that allows editors to defend statements they cannot prove are true, if they can nevertheless prove that they acted responsibly and in the public interest when they printed them. I will not detain you with the details of how an editor can show he has acted in the public interest. The Reynolds Defence carries so many conditions it is as if the lawyers designed it to fail. The senior judiciary complain that the judges in the libel courts disregard what protections it offers, and few writers or defence lawyers think it worth their while invoking its terms.

Scandalous though these barriers to justice are, they would not be so intimidating if the English legal system had not given a further and overwhelming advantage to the moneyed classes. Civilised countries must find ways for citizens to take action against poisonous writers who cause real harm. They must insist on prominent corrections, and if editors refuse to carry them, the law must punish them. But if justice is to be done, it must be speedy, or the powerful will be able to close down stories for years. And it must be cheap, otherwise most members of the public will not be able to protect their reputations, and most publishers will be unable to afford the risk of defending their work, and will fall into silence.

In Britain, money buys silence. The cost of libel actions in England and Wales is 140 times higher than the European average. If you lose a case, lawyers operating on a no-win, no-fee contract force you to pay damages, your costs, your assailant’s costs, a ‘success fee’ for the victorious lawyers – which doubles their real costs – and a payment to cover insurance bills. In 2010, Lord Justice Jackson added these together, and estimated that the costs of civil litigation in England could amount to ten times the damages the court awarded.