In praise of libel laws

Relaxing libel laws sounds like a good thing, but is a US-style “free” press what we really want?

At first glance, Nick Clegg's announcement that he is to reform Britain's "chilling" laws against defamation seems like news to greet with a hearty cheer. Surely we would all agree with the Independent's verdict on Saturday:

Britain is the global champion when it comes to libel litigation. That is not a title to be proud of. Our exalted position is a consequence of some extraordinarily skewed libel laws. Anyone can be sued in a British court for anything published in any country, provided the defendant can show they have a "reputation" in the UK to be damaged. This has helped to turn London into a hub of libel tourism. It is also threatening to undermine free speech.

But even before the reaction to the shooting of Gabrielle Giffords led some commentators to claim that a "blood libel" is now being perpetrated against the likes of Sarah Palin, Glenn Beck and the Tea Party in general (see Charles Krauthammer in yesterday's Washington Post and, for a more nuanced response, Dan Hodges in the NS), I felt a chill about the direction of Clegg's reforms. For while our current libel laws are disgracefully abused, much of the sentiment that surrounds the campaign to loosen the policing of what we can and cannot say or print has a much bigger goal in mind.

"Ideally, Britain would move towards a US-style legal bias towards free speech," continued the Independent leader I quoted above. Or, as Natalie Rothschild wrote on Spiked: "While there is a mood for reform, let's scrap these censorious laws altogether."

There appears to be great enthusiasm for the US model (Rothschild even praises Congress for having "gone to great lengths to free American citizens from English restrictions on rigorous reporting"). I cannot share it. I have seen too many instances of where American "free speech" has degenerated into fact-twisting, hate-ranting and straightforward lying – against which no one seems to have anything like adequate legal defence.

Taking the rise

I have mentioned before how lies about John Kerry's Vietnam record could well have lost him the 2004 presidential election. Senator Al Franken devoted a chapter of his 2005 book The Truth (With Jokes) to it, but I would like to reproduce again the Boston Globe columnist Tom Oliphant's conclusions:

You know, we've put a million stories in our waste baskets over the years, because they don't . . . check . . . out. Today, we publish, or we broadcast, the mere fact of the accusation, regardless of whether it's filled with helium . . . We served as transmission belts for this stuff without ever inquiring into its accuracy.

That is what "US-style legal bias towards free speech" has led to. It's also led to more routine distortions. Every time a tax comes up for renewal in Congress, some vote for it and some against. However, those who vote for it are described time and again by their opponents as having supported a tax rise (a serious charge in a country where so many believe that their government may be a force for unending good abroad, but is run by a cabal of thieving liberals ever eager to pick the pocket of Joe Six-Pack at home).

You don't have to be a logician to work out that voting to maintain a tax that already exists is not the same as supporting a tax rise. The levy remains the same. In what sense can it be said to have risen? It doesn't matter. The "transmission belts" of the American media put it out all the same. As for other examples: just why do you think it is that so many in the US seriously believe that President Barack Obama is not a US-born citizen and is also, horror of horrors, a Muslim, too?

I would not like to see the poison of US-style political discourse become the norm in this country. But nor do I trust the British media to act responsibly without considerable legal constraints. As someone who used to write for columns whose every sentence had to be checked by in-house lawyers, I can tell you that it concentrates the mind wonderfully when you are daily reminded that the slightest error could cost the paper several thousand pounds in damages, and possibly your job.

Morals of the marketplace

I can still remember the sense of dread I felt when one column I was overseeing printed the wrong first name in a story not more than 40 words long (it concerned the prison sentence of a son of a famous novelist). "We'll have to pay him £5,000," said the paper's lawyer to me over the phone that evening, with what sounded like considerable glee at my discomfiture. "You're lucky. If he'd asked for £10,000 or £15,000 we'd have had to give it to him."

And, he could have added, my head on a platter, too. I had asked the reporter three or four times to check she'd got the name right. Still the name of his blameless brother went into the paper – which was my responsibility as the column's editor. (Some years later I ran into the individual in question in an entirely different capacity. He was amiable and, far from being worried about the mistake, seemed quite pleased to have been libelled so profitably.)

That was a matter of factual accuracy, not intentional accusation. But if you have a press unconstrained by the requirement to back up accusations with solid evidence, why bother with the facts? Peter Wilby has already written about how the reporting of criminal court cases in England now routinely rides roughshod over the Contempt of Court Act 1981.

It does not bear thinking about the groundless fantasies that, granted the leeway of their American counterparts, would soon fill the news pages and opinion columns (where "fair comment" already allows for more freedom) of British newspapers – and I don't just mean the tabloids.

"A lie gets halfway round the world before the truth has a chance to get its boots on," goes the saying attributed to H L Mencken. The threat of a tiny correction has never done much to impede the globe-trotting of any falsehood. On the other hand, the law which makes a journalist, however devious or low he may be, pause and ask himself "Is this true?" may be an unloved sanction, and one that, yes, sometimes serves to keep wrongdoing unmasked and aid the interests of the rich and powerful.

But it also protects all of us from media that too often derive their morality solely from the marketplace. Will it sell? It would be idle to suggest that a publication should not ponder that consideration when deciding what to print. I would rather at some point, however, that editors also had to weigh up the small matter of accuracy.

One would have to have quite an astounding faith in human nature to believe that this would be guaranteed without some sort of libel law.

Sholto Byrnes is a Contributing Editor to the New Statesman
Photo: Getty
Show Hide image

On the important issues, Louise Casey all too often has little to say

Far from moving the debate on, this new report on integration adds little to the report I commissioned in 2001. 

For 15 years, “numerous government reports on community cohesion and integration have not been implemented with enough force or consistency” concludes Louise Casey’s review of  integration.  The government’s lukewarm response suggests their effort will be as “diluted and muddled” as all the rest.

There’s a deeper reason why governments shy away from the measures that are needed. The report's wealth of data sets out a stark if sometimes contestable picture of a divided society.  But no amount of data can really bring the lives of our fellow citizens to life. As the Brexit vote underlined, this is now a nation divided by class, geography, education, wealth, opportunity and race. Those divisions colour the way we live our lives, the way we see problems in society, the relations we have with others, and our political choices. The report, like many before it, stops short of setting out that reality. It’s easier to pretend that most of us pretty much agree on most things; but just few people don’t agree and they must be the problem. Predictably, much of the early coverage has focussed on the Muslim community and new migrants. If only it were so easy.

According to Casey “in this country, we take poverty, social exclusion, social justice and social mobility seriously” and we do it “across political divides”. Apparently “creating a fair, just society where everyone can prosper and get on” is a cornerstone of British values. Yet for page after page the report chronicles the serial failure of this benign consensus to tackle educational under-performance, and economic and racial disadvantage. If we all agree, how come we haven't done anything about it?

These problems are not certainly easy to solve, but more lip service is paid to tackling them than effort. The practical material issues documented here need addressing, but punches are pulled when hard answers are needed. Given the dramatic impact of mass migration on cohesion, is integration possible while current rates of immigration persist? Can we find the political will to tackle poverty and disadvantage when those who might benefit from the effort are divided against each other by suspicion, race, geography and values? After all, rather than progressive policies producing a cohesive society, social unity is the precondition for the introduction of progressive policies.

We don't actually actually agree on what our “fundamental values” mean in practice. We can all sign up to democracy and the rule of law, but as soon as those are put into practice – see the court case on Article 50 – we are divided. When judges are popularly seen as “enemies of the people” and a vote in an elected parliament as a threat to democracy, in what sense are law and democracy fundamental?

Casey usefully highlights how treating homeless families equally, irrespective of ethnicity and length of residence can create the perception that minorities are being favoured over long standing residents. Our differing views on what is “just” and how “fairness” are defined can tear us apart. Is it fair to favour the newcomer over the indigenous? Is it just to put length of time on the waiting list above housing need? We often don't even acknowledge the legitimacy of other points of view, let alone try to find common ground.

The continual invocation of Britain and British values lends an air of unreality to the report.  Most people in England include British in their identity, but Englishness and English interests are of growing importance. In a worrying development, some areas of England  may be polarising between a white Englishness and an ethnic minority Britishness. Integration won't happen without a shared national story that combines a unifying national identity with the acceptance that we all have more than one identity that matters to us. Ignoring the reality of complex and multiple identities closes off one essential way forward.

None of this means that the criticism of some reactionary and occasionally dangerous ideas and practices in the Muslim community should be ignored and not confronted. But in a country where the established church opposes homosexual relationships and praise for Vladimir Putin's Russia is now mainstream politics it is hard to believe that all our problems can be reduced to the behaviour of a minority of a minority community.

John Denham was a Labour MP from 1992 to 2015, and a Secretary of State 2007 to 2010. He is Director of the Centre for English Identity and Politics at Winchester University