You Can't Read This Book: Censorship in an Age of Freedom (24 page)

A chill descended on English writing as publishers realised that punitive costs could cripple them. Libel law became the strangest branch of English jurisprudence. It was a law that lawyers hardly ever tested in court. Libel judges had to find other work for much of the year. The overwhelming majority of libel actions never ended in a hearing to determine if a work was true or its opinions fair, but remained hidden from public view. Publishers quietly settled, coughed up and withdrew offending material rather than run the risk of facing extortionate bills. Beyond these cases of censorship lay the unknowable number of writers and publishers who self-censored. As when you contemplate religious censorship, you must always think of the books that were never written, and the investigations that were never begun, because of the overweening power of money.

Lawyers began to wonder about the point of defamation law. The London media solicitor David Allen Green said, ‘Almost all the statements which can actually damage a person’s reputation – employers’ references, credit searches, complaints to police and regulatory authorities – are covered by “qualified privilege”.’ The person making the statement was free to defame – regardless of the damage caused – ‘as long as he or she is not being malicious’. Police officers could have records that falsely suggested that you were a child abuser, but you could not sue them. A credit agency could erroneously claim that you were a serial debt defaulter, and you could not sue them either, when a bank denied you an essential loan, unless the agency had acted with a negligent disregard for the truth. If a newspaper, academic journal, book publisher, blogger or TV station made any kind of accusation, you could sue them, and in all likelihood the case would never come to court because of the horrific costs of fighting and losing an action.

The denial of access to the courts was a final malign consequence of the English system. Censorship only made sense if judges weighed the evidence in a fair hearing. But cases rarely went to court. Therein lay the beauty of the English system for the rich litigant. He need not risk a trial in open court, where the defence could air the argument against him on the record. He could secure an apology through fear of financial loss, while sparing himself unwelcome publicity. Instead of being a means of establishing facts, the law became a device deployed by lawyers, who tellingly began to call themselves ‘reputation managers’. A dubious businessman trying to make his way in English society would make a show of contributing to charities. He might buy some fine art, or donate to the opera, so he could pose as something more refined than a money-grubbing philistine. He would contribute to a political party in the hope, nearly always realised, of buying himself a peerage. And if anyone tried to query his philanthropic reputation, he could divert a small part of his fortune to a ‘reputation manager’ who would manage the offender with writs, and deter others from following the story.

In 2006, reporters on the Danish newspaper
Ekstra Bladet
decided to investigate the stunning rise of the Icelandic bank Kaupthing, which was buying assets across Denmark. How, they asked, had a bank from a volcanic island, without the resources to support a huge and voracious financial sector, become so powerful? The newsdesk decided they should concentrate on the links between the bank, Russian oligarchs and tax havens. Kaupthing was furious. It was accustomed to receiving praise from the financial press for the entrepreneurial dynamism of its managers. It threatened to sue
Ekstra Bladet
in Copenhagen, and at the same time filed a complaint with the Danish Press Council, which handled cases of breaches of press ethics.

The paper defended its journalism, and the Danish Press Council rejected the bank’s complaint. Kaupthing withdrew its Danish lawsuit, and the argument seemed to be over until
Ekstra Bladet
’s bewildered editors heard that the bank was now suing them in London. The costs were beyond anything they had experienced before. In Denmark, lawyers consider a libel action that costs £25,000 expensive. In London, lawyers for Kaupthing and
Ekstra Bladet
ran up costs of close to £1 million
before
the case came to court.
Ekstra Bladet
could not run the risk of doubling, maybe trebling, the bill if it lost. It agreed to pay substantial damages to Kaupthing, cover its legal expenses and carry a formal apology on its website.

A few months later, Kaupthing, along with the other entrepreneurial, go-ahead Icelandic banks, collapsed. Iceland’s GDP fell by 65 per cent, one third of the population said they were considering emigration, and the British and Dutch governments demanded compensation equivalent to the output of the entire Icelandic economy for the lost deposits of their citizens in Kaupthing and other banks.

Two points are worth flagging. The Danish journalists did not predict the collapse, but instead showed they had the nose for trouble that all good reporters possess. They could sense that there was something wrong with banks from a country with a population no larger than that of Coventry or Peoria, Illinois, buying overpriced foreign assets and acquiring the debts to match without having a government capable of acting as a lender of last resort in an emergency. Kaupthing went for the paper in England – not just because it wanted to kill the original story, but because it also wanted to deter others from spreading the idea that Iceland was not a safe place for investors. The English legal profession obliged. It placed the bank off-limits. Newspapers lawyers thought once, twice … a hundred times before authorising critical stories. As events were to turn out, the English legal profession had also stopped the British investors who were to lose deposits worth $30 billion in Iceland from learning that there was a whiff of danger around the country’s banks, although no lawyer showed any remorse about that.

A second point staggered foreigners. Even though Kaupthing was an Icelandic bank challenging a Danish newspaper, it was able to go to London and find a legal system willing and able to provide the coercive pressure it required. Most people would assume that what Danes wrote about Icelanders was none of England’s business. England’s lawyers thought differently. Their meddling did not shock all foreigners, however. Roman Polanski for one realised that England could give him what no other country would offer: a chance to sponge his reputation clean.

Globalising Censorship (2)

On 21 July 2008, the United Nations declared that the practical application of English libel law ‘has served to discourage critical media reporting on matters of serious public interest, adversely affecting the ability of scholars and journalists to publish their work’. England’s authoritarianism was not a local concern, but created the global danger that one country’s ‘unduly restrictive libel law will affect freedom of expression worldwide on matters of valid public interest’.

Libel law was making England look like a pariah state. The Internet ensured that all online publications everywhere on the planet could be read in England. Thanks to the Duke of Brunswick and his obedient servant, a single view of a Web page in the UK constituted a publication of the libel in England, however old the offending words were. True, wealthy men could sue only if they had a reputation in England that critical reporting could damage. But as many oligarchs had a London home, or had business dealings in the City, they could overcome that obstacle with ease. The courts retained the option of saying that a rich man should sue in the country where the offending article was published, but the judges wanted to catch passing trade, and on most occasions welcomed plutocrats to the courts of old London town.

The first casualty was the British reading public, which could not buy works published in free America in their bookshops. The threat of legal action either banned or ensured the mutilation of Kitty Kelley’s muckraking biography of the royal family, virtually every American discussion of the funding of Islamist terrorism, and
The Best Democracy Money Can Buy
, Greg Palast’s account of the dark side of corporate life.

An admirably vulgar episode of
South Park
highlighted the absurdity of banning material in one part of the democratic world that was freely available elsewhere. In an episode entitled ‘Trapped in the Closet’, Scientologists decide that the child character Stan is the reincarnation of L. Ron Hubbard, the herder of credulous souls who founded a sci-fi cult in the 1950s. Celebrity Scientologists John Travolta and Tom Cruise join the crowd on Stan’s lawn in South Park that has gathered to worship him. When Stan tells Cruise he does not think he’s as good an actor as Leonardo DiCaprio, but is ‘OK, I guess’, the despairing Cruise buries his face in his hands. ‘I’m nothing,’ he says. ‘I’m a failure in the eyes of the Prophet!’ He runs into Stan’s wardrobe and locks himself in, allowing assorted characters to shout, ‘Tom Cruise, come out of the closet!’ with all the false but funny innuendo that implied, for the rest of the show.

In the final scene, Stan refuses to become the Scientologists’ new guru, and renounces L. Ron Hubbard and all his works. Hearing this blasphemy, Cruise comes out of the closet and cries, ‘I’ll sue you …
in England!
’ To make the joke complete, the Scientology episode was the one episode of
South Park
British television managers dared not show, in case they were sued …
in England
.

English broadcasters’ fear of the law spared the producers of
South Park
an experience common to human-rights campaigners and investigative journalists around the world: the bewilderment that came with receiving a letter threatening to initiate proceedings in the High Court in London. Far from being a beacon of liberty, a place where people from authoritarian regimes or working for authoritarian corporations could hear arguments about their masters aired, England was liberty’s enemy. Saudis who could not investigate a petro-billionaire in Riyadh for fear of punishment found that London punished exposés when they were printed elsewhere. Ukrainian and Russian journalists, who took no small risk when they confronted their native oligarchs, discovered that the English legal system was as willing as their native jurisdictions to punish them for insubordination.

I still recall the shame I felt when the legal director of Human Rights Watch in New York told me she spent more time worrying about legal action from England than from any other democratic country when she signed off reports on torture, political persecution and tyranny. In the late 1990s, her colleagues had collected eyewitness testimony and Rwandan government documents, and named those who played a role in the Rwandan genocide. In 2005, one of the men named in the report threatened a defamation suit in the UK, although only a few readers had accessed the report online from Britain. Her colleagues had to go back to Rwanda, reconfirm facts and relocate sources, and amend the report to avoid a full-blown legal case, even though the new Rwandan government was investigating the complainant and he had gone into hiding.

It was a familiar pattern. English judges allowed Boris Berezovsky to sue the American
Forbes
magazine for accusing him of being involved in the gangsterism that marked the arrival of Russian capitalism. The magazine sold around 780,000 copies in the United States, while readers accessed about six thousand copies in print or via the Net in the UK. Among the reasons the judges gave for allowing Berezovsky to avail himself of the services of the English rather than the Russian or American law was that his daughter was studying at Cambridge.
Forbes
retracted. The Ukrainian oligarch Rinat Akhmetov successfully pursued
Kyiv Post
, which had just a hundred British subscribers, and a Ukrainian website which did not even publish in English. The son of the ruler of the Republic of the Congo tried to sue Global Witness for a breach of privacy after it published details of how he was spending a fortune on luxury hotels and goods, while the country’s inhabitants suffered from miserable poverty.

These were mere part-time litigants when set against the foreigner who exploited the reach of the English libel law more than any other: Sheikh Khalid bin Mahfouz, a Saudi banker, whom I think I can write about now because he is dead – and the dead cannot sue, not even in England.

‘Behind every great fortune there is a great crime,’ Balzac is meant to have said. And as with so many other oligarchs, bin Mahfouz’s fortune had a whiff of the gutter about it. He was in charge of the National Commerce Bank of Saudi Arabia, and worked with the Bank of Credit and Commerce International. In 1992, after BCCI’s spectacular collapse, the New York District Attorney indicted him as a front man for a ‘Rent a Sheikh’ fraud. Bin Mahfouz was a principal shareholder and director in the BCCI Group, whose presence on the board reassured trusting investors, the DA said. Without their knowledge, he withdrew his investment, an action that resulted ‘in a gross misstatement of the true financial picture of the bank’. Luckless investors, who did not realise that bin Mahfouz had got out before the balloon went up, suffered ‘larger losses when BCCI’s worldwide Ponzi scheme finally collapsed’. Bin Mahfouz denied all allegations, but he agreed to pay a fine of $225 million, and accept a ban on any further activities in the American banking system. England did not hold it against him. When investigative journalists began to talk about his alleged links to al Qaeda, London lawyers pounded them with writs with a ferocity not seen since Robert Maxwell’s day.

In one respect, however, bin Mahfouz differed from the old brute. He defended his ‘reputation’ in the English courts while not being a British citizen. Nor, somewhat surprisingly, was he a Saudi citizen. In 1990, the billionaire acquired Irish passports for himself and ten members of his family over a convivial lunch at the Shelbourne Hotel in Dublin with the Irish Taoiseach Charles Haughey. Bin Mahfouz promised to invest in the country. Haughey promised him citizenship. A subsequent inquiry found that Haughey breached statutory procedures in the interest of pleasing bin Mahfouz.