David Allen Green

A critical and liberal look at law and policy

A lesson of history about libel

The legal threat of Niall Ferguson.

By David Allen Green Published 06 December 2011 17:49

The legal threat of Niall Ferguson over a hostile review in the London Review of Books by Pankaj Mishra of his Civilisation: The West and the Rest is, at best, unfortunate.

As with the case of British Chiropractic Association v Simon Singh, one suspects that this is the sort of dispute not well suited to a libel court. Whether Mishra's (frankly rather unreadable) review actually made the "insinuations" that Ferguson asserts, does not, in my view, lend itself easily to the libel litigation process. By the time Ferguson's meaning of the "words complained of" is determined, and all the applicable defences worked out, one or two years will have passed and hundreds of thousands of pounds will have been spent. And the case would still probably be no nearer trial.

A better way would be, as Ferguson has indeed done, to set out why Mishra's insinuations are incorrect. If Mishra was wrong-headed in, for example, comparing Ferguson's approach with that of a little-known vile American historian, then Ferguson's rebuttal will be all that is really needed. There appears to be no good reason for Ferguson to press on for an "apology" backed with the threat of expensive libel litigation. An apology in such circumstances would not have any real-world effect of vindication. In fact, it may well be said that Ferguson -- paradoxically -- will have damaged his reputation more with a threat of a libel action than any book review by Mishra would ever do.

One would instead urge the approach of historians of previous generations. For example, in the early 1960s, Hugh Trevor-Roper and AJP Taylor got into a vicious spat over the latter's Origins of the Second World War. Trevor-Roper, a professor at Oxford University, wrote an extremely aggressive review of his colleague's book, ending with the comment:

It [the book] will do harm, perhaps irreparable harm, to Mr Taylor's reputation as a serious historian.

But Taylor replied, tearing apart the Trevor-Roper review in an article "HOW TO QUOTE: Exercises for Beginners" which, in turn, ended:

The Regius professor's methods of quotation might also do serious harm to his reputation as a serious historian, if he had one.

(Source: Ved Mehta's wonderful contemporaneous account of many early 1960s intellectual disputes in England, The Fly and the Fly-Bottle)

Taylor and Trevor-Roper (and Toynbee, Elton, Thompson, and all the great historians) dealt with controversy by simply rolling up the sleeves of their tweed jackets and getting stuck into the next round of acrimony and recrimination. That, surely, is a better way than a claim in defamation.

This is not to say that Ferguson does not have a libel case. He may well do so. But all because one has a legal right, one does not necessarily have to exercise it. If anything, that is a lesson of libel history that even a historian can appreciate.

David Allen Green is legal correspondent of the New Statesman

Tags: Libel

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33 comments

Tue, 2012-08-21 13:18 — Muriel (not verified)

One of your first sentences says Mishra's review is difficult to read. That immediately put alarm bells for me. I read Mishra's review and found it very accessible. This puts your understanding of Mishra's article in great doubt.

Sun, 2012-09-09 03:36 — JRH (not verified)

Well, Green doesn't say it the piece is inaccessible. He said it was "frankly unreadable". In fact Mishra's review elicits smiles of pleasure throughout, but especially at the outset when Mishra uses the *Great Gatsby* to illuminate the tradition in which Ferguson writes. Ferguson 's pomposity in his protest letter doesn't help his cause, of course, but it is the pose to be expected from his sort.

Sun, 2012-09-09 03:35 — JRH (not verified)

Wed, 2011-12-07 03:23 — Neville Peters (not verified)

I read his rebuttal. It read like the faux outrage of sixth former trying - unsuccessfully - to get one up on his schoolmaster. If that's the standard of his writing, I won't be delving any deeper into his work.

Wed, 2011-12-07 08:24 — jan frank (not verified)

Is this a case of

qui accuse s'excuse?

Wed, 2011-12-07 08:51 — Colin Sloss (not verified)

I have been called a 'scumbag' on this site and didn't sue party because the other party didn't use their full name.

Wed, 2011-12-07 10:55 — Mark Pack (not verified)

The great thing about the Taylor vs Roper spat is that as they exchanged reviews, articles, prefaces etc. to argue their positions, they left behind very readable material for future students and other interested people to read, allowing us all to get inside the details of the arguments.

A libel case might provide much interesting material for lawyers and legal students to read, but doesn't usually leave the same expanded understanding of the intellectual dispute for a wider audience to benefit from.

Wed, 2011-12-07 11:53 — Matthew Taylor (not verified)

@Mark Pack: Not necessarily true. Irving vs. Lipstadt created an excellent resource - especially when read alongside Irving's book - for understanding the reality of the machinery of the holocaust, in the first place, and the approaches of denialists in the second.

(Mr. Justice Gray's judgement is, frankly, superior to Lipstadt's own work, on which it is inevitably based in part.)

It comes down to the point DAG makes in his second paragraph - what Ferguson compains about are insinuations, and those are not well suited to libel proceedings.

The whole thing is rather hollow. Both men have books to sell: Ferguson is accused by Mishra (in his riposte to Feruson's letter) of suppressing African and Asian voices; the "tag" for Mishra's original review was "[His] new book, about modern Asian thinkers, will be published next year."

Qui bono, etc.

Sun, 2011-12-11 02:46 — Neville Peters (not verified)

@David Allen Green, you might well think that the review was "mainly waffle and strident assertions" (although I, and perhaps many others, might disagree), but that is hardly justification for using the term "unreadable". It seems a very poor use of the word indeed, especially given your half-hearted explanation.

Mon, 2011-12-12 14:58 — Willp

Mishra's rather readable review undermines Ferguson's bloated reputation. Ferguson's nasty biases are apparent in his comments,"The London Review of Books is notorious for its left-leaning politics. I do not expect to find warm affection in its pages. Much of what I write is simply too threatening to the ideological biases of your coterie."
Ferguson's recourse to the courts is appalling bullying. I hope he gets the same result as David Irving did when he sued Penguin Books and Deborah Lipstadt for libel. And remember that Simon Singh, thankfully, won his case against the British Chiropractic Association.

Sat, 2011-12-17 11:05 — Chris NYC (not verified)

Thomas Devine's comment seems to be the only one that touches the larger issue -- why does Britain have such ridiculously low standards for libel suits?

It sounds as though any kind of disagreement is fair game and no actual damages need to be proved. Under that standard, several more libel suits could arise just from the comments above. In addition to his current suit, Mr. Ferguson could sue one of you for saying he's stopped being a scholar and another for calling him a pompous ass, and it looks like Mr. Mishra could sue half a dozen people easily. (Plus, of course, several of you can sue one another. What a fun time you all must have!)

One commenter above mentions that he didn't sue someone here once because the person didn't give his full name. One wonders why anyone in Britain ever would -- it seems much too risky.

Thu, 2011-12-08 14:31 — Neville Peters (not verified)

@adam I agree, it wasn't 'unreadable' at all. It was very well put together, which is probably the root of Ferguson's annoyance.

Thu, 2011-12-08 15:09 — adam (not verified)

@Neville Peters

i'm glad you agree, i think it's, without going on and on about it, excellent. i wonder how long it took him to write

anyway, i was quoting David Allen Green, who I've got plenty time for, he says it's unreadable. this made me wonder where he got the idea from, and what it means for future civilization. basically i hope he was having a bad day and deadlines were biting because the review is rather long! that's for sure

Wed, 2011-12-07 15:03 — Agoodword (not verified)

Somewhere down the line, i dont know when, Ferguson stooped being a scholar. He is driven more by narcissism than the pursuit of truth and academic brilliance. Somewhere down the line he realised he can achieve a glimmer of celebrity status through his academic work and now has turned his professional as a toll properly seasoned in order to be prostituted to justify imperialism. Beware of vanity Mr Ferguson, the next thing to go will be your soul not just your academic credibility.

I wonder if he will sue me

Wed, 2011-12-07 15:29 — FA

Agoodword

He still is a scholar when he stays on subject - his biography of Siegmund Warburg was excellent and that was written 18 months ago. You don't get a professorship at Harvard for nothing. He has said some silly things in the media when he strays off-topic and is known to be right-wing. It is this latter point that is the big issue - he has become a hate figure for the broader left. Leading academics aren't "supposed" to be conservatives apparently.

Did Mishra go too far? Yes - and it isn't even clear why anyone prints anything written by him; he's a complete non-entity. Should Ferguson sue for libel? No. Apart from the very valid points raised by Green above, Ferguson himself is a prime culprit of talking crap in the media for attention - so he can hardly call the kettle black now that someone else is doing the same thing.

Now that Bin Laden is dead he should shut up about muslims and the west and stick to financial history.

Sun, 2012-03-25 20:20 — RemingtonSherman

Personally I'm rubbing my hands with glee at the likely debates such a case might generate - and what contribution this might make to the current talk about the national curriculum, to say nothing of the expert witnesses who might be required. http://www.windows101.org/

Fri, 2011-12-09 12:54 — foowzkaa

"I took the time to read the review, and I disagree one hundred per cent with Mr Green's assessment that Mishra's review was "frankly unreadable", which makes me suspect that he took one look at the length of it before deciding that it was unreadable."

I did, and that was my opinion of it.

It is mainly waffle and strident assertions.

That is why I said the review would be ill-suited as the subject of libel litigation - it would take a long time, and a fortune, even to determine what Mishra means in many of his paragraphs, let alone all of them.

And I do like "constains" as a verb for "insinuations" ;-)

Wed, 2011-12-07 18:00 — AllanW (not verified)

@ Agoodword; '.. and stick to financial history.'

Is that a likelihood, do you think? I hope so because after I saw his TED talk 'The 6 killer apps of prosperity' I laughed like a drain for days and could do with cheering up at the moment.

Fri, 2011-12-09 15:06 — adam (not verified)

David Allen Green, very nice of you to reply!

interesting remarks. if you can be arsed can you give an example of waffle and/or strident assertions? and point to any of the paragraphs where Mishra's meaning is ambivalent if not confusing.

or if you can't be arsed, which is fair enough, isn't it cold out?

Tue, 2011-12-13 16:49 — Paul Hillyard (not verified)

Ferguson is a historian 30 years behind the times.

Has he missed the capitalist crises of the last 30 years?

Not a historian just a celebrity, he'll be in the celebrity jungle this time next year.

Tue, 2011-12-06 18:18 — foowzkaa

Further to the above, Taylor did almost err once, see p 170-1 of http://bit.ly/sWI1RN
...but he was swiftly talked out of taking libel action

Tue, 2011-12-06 18:30 — Jonathan (not verified)

I've said it once and I'll say it again; The High Court has no place in academic discourse. For Ferguson to throw his toys out of the pram and cry libel is a disgrace to the discipline!

Tue, 2011-12-06 18:33 — Simon Atkinson (not verified)

Ferguson's a reputable historian? When did that happen?

Tue, 2011-12-06 18:44 — David Chiverton (not verified)

Simon I think you'll find he's been a reputable historian for quite a while.

Sun, 2011-12-11 22:09 — Thomas Devine

For me the whole lesson of this mess is simple. In America you can only be sued for libel or slander if the people bringing the case can show the possiblity of malice, and they can only win if they can show the preponderence of the evidence shows malice. No malice, no libel, and polical or acedemic disagreement does not count as malice. Ergo, Britain needs to emulate the American laws on libel and slander, quickly!

Tue, 2011-12-06 19:07 — Nick (not verified)

Excellent article!

Interesting that you don't mention David Irving vs. Penguin Books Ltd & Deborah Lipstadt here.

Were Ferguson indeed to have grounds for turning his legal threat into action, I suspect all that would happen would be that the content of his body of work would end up being the subject of sharper scrutiny, in precisely the way Mishra advocated both in the initial article and at the end of his final(?) rebuttal of Ferguson's threat.

Tue, 2011-12-06 19:39 — Simon Atkinson (not verified)

David Chiverton: I picked up one of his books (can't remember which one I'm afraid). Went straight to the back - no bibliography and no notes.

I therefore concluded he was not a historian.

Thu, 2011-12-08 21:31 — FA

allanw

"'The 6 killer apps of prosperity' I laughed like a drain for days and could do with cheering up at the moment."

Yes, that sounds like crap - though to be fair it is meant for children.

It comes across like a vicar's comical attempt to be "street" and talk to the kids in their own language.

Tue, 2011-12-06 21:35 — Csrster (not verified)

No notes, no bibliography, but you can't remember the name of the book. Now there's irony.

Thu, 2011-12-08 22:35 — Daryl

I took the time to read the review, and I disagree one hundred per cent with Mr Green's assessment that Mishra's review was "frankly unreadable", which makes me suspect that he took one look at the length of it before deciding that it was unreadable.
I think that Ferguson's reply to the review demonstrates that while he can't stand the idea of being criticised, he simply does not care to invest the time in researching enough to make a reasonable argument.
The fact that the review so systematically destroys Ferguson's work, and is more thoroughly researched than anything Ferguson has written in many years shows why Ferguson his so petulantly throwing his toys out of the pram.
As for insinuations of racism. Of course the review constains them. The justification for colonialism is based on the superiority of one civilization over another. To relativise it is one thing, but Ferguson argues for its current application, and that I'm afraid is racist.