Damages don't hurt press barons. For our system to provide proportionate redress, these cases must be taken out of the courts
To my surprise, I find myself in sympathy with Andy Coulson, editor of the News of the World. He has just lost a case in Edinburgh brought by Tommy Sheridan, an MSP and former leader of the Scottish Socialist Party. The NoW accused Sheridan of wild sexual adventures, but the jury found the allegations untrue and awarded damages of £200,000.
Coulson had good reason to think he would win: he had 18 witnesses to back up the paper's allegations and he could call on the minutes of an SSP meeting which recorded an alleged Sheridan confession.
But Coulson had the wrong jury in the wrong place. The NoW underestimated the extent to which the British love a colourful, roguish politician, even if they wouldn't dream of voting for him. It also underestimated how much people outside London resent the metropolitan press (while continuing to buy the papers) and how this can be mixed up with nationalist feeling.
When I worked on another paper, the Birmingham Six, who had been wrongly convicted and imprisoned for pub bombings during an IRA campaign in 1974, were grievously libelled in our pages. We thought it might count in our favour that the libel was contained in a quote from a retired general, whom we had intended to expose as ignorant and prejudiced, and that the paper (and the author of the offending article) had campaigned fiercely for the men's release. Alas, the men sued in Dublin, and the damages were substantial.
British laws (the differences between England, Scotland and Ireland are unimportant in this context) are so framed that a high proportion of what is printed is potentially libellous. Plaintiffs have to prove only that allegations have upset them; defendants have to prove their truth. The most literal-minded newspaper lawyers demand that writers demonstrate the truth of almost any negative comment; I remember one who wanted proof that Paul Gascoigne could reasonably be called fat. Not long before, an actress had successfully sued over references to her allegedly large bottom.
So, before daring to publish, editors must ask not so much whether something is true, but whether the aggrieved party is likely to sue, whether the newspaper and its representatives will cut more sympathetic figures in court (to which the answer is almost always no, even when a politician is involved), whether enough witnesses will testify in the paper's support and, equally important, whether they will impress a jury. Editors often forget that juries feel less need to be conscientious in libel cases than they do in criminal cases and, therefore, give freer rein to their prejudices. Nobody's liberty is at stake and, to most people, newspapers seem rich enough to afford hefty damages and costs without suffering significant pain.
Juries also think newspapers are insured against libel damages, though this is true only of the better-off ones and, in any case, a succession of losses will lead to future premiums that are punishingly high.
Newspapers can hope, as does the NoW in the Sheridan case, that a jury's verdict will be overturned as "perverse" on appeal. But most judges are no more enamoured of the press than is Joe Public.
I am reluctant to advocate anything that removes juries from judicial processes. And it is probably good for journalists to be reminded by cases such as Sheridan's of how low they stand in public esteem. But as I pointed out here on 22 May, the libel laws hit smaller and poorer publications hardest. A libel pay-out is a pinprick to Rupert Murdoch, so it's no use greeting the Sheridan case as a blow against global capitalism.
I therefore repeat my support for the proposal by Lord Justice Stephen Sedley, for a statutory regulator to investigate complaints and provide "genuine and proportionate redress" without the need to go through the courts.
Close, but no cigar
I suppose Fidel Castro is unlikely to sue in the British courts. But given Cuba's shortage of foreign exchange, it might be worth his taking a punt. One of the earliest lessons I learned as NS editor was that many readers regard Castro rather as Telegraph readers used to regard the late Queen Mother, and that harsh criticism of the Cuban president would lead to threats of cancelled subscriptions. Guardian readers clearly take a similar view, judging by the responses on its letters page to news of Castro's ill-health and possible demise.
One argued that it was wrong to describe Cuba as a dictatorship; another that it was "one of the world's most egalitarian societies"; a third that the National Assembly which elected Fidel and his brother Raul "to their roles" is itself elected by universal suffrage. I am not going to join in the abuse of Castro - you can find plenty of that in the Daily Mail and the Sunday Times - but one is bound to say "ho, hum".
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