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23 September 2023

Russell Brand’s fellow travellers should defend their claims in court

It is high time social media’s age of impunity was brought to an end.

By Will Dunn

Beyond the grim allegations that Russell Brand was responsible for rape and sexual assault came the spectacle of columnists, broadcasters and wealthy individuals questioning not only whether the allegations were true, but why the story has been published at all. People with TV shows and columns in national publications have suggested that the purpose was to discredit Brand because he is a critic of lockdowns, the pharmaceutical industry and the “mainstream media”.

The GB News host Bev Turner tweeted that Brand was being “attacked” by the “Establishment media”; she later stated on her show that she was “confident” the allegations against Brand are untrue, and claimed that this information came from sources close to the journalists involved. Elon Musk responded to Brand’s own denial of the allegations that “they don’t like competition”; the Telegraph’s Allison Pearson tweeted that her “first reaction is to wonder why They are trying to silence [Brand]”, and that what Brand’s “media accusers” have been doing could not be described as “journalism” or “bring[ing] truth to the public”. The YouTuber Carl Benjamin implied that the women making the allegations against Brand had been paid to do so.

A wild implication is being made here. Audiences are effectively being told that Britain’s biggest-selling broadsheet newspaper and a government-owned TV channel conspired to accuse a celebrity of rape, in order to suppress his criticisms of public health policy.

How have such offensive and obvious conspiracy theories become normal? How do the attention-grifters keep getting away with it?

It is the product of a power imbalance: the law favours social media platforms and their trolls over newspapers, broadcasters and their reporters. Twitter and the Sunday Times appear on the same screens. Elon Musk can, like a newspaper editor, decide which writers (notably one E Musk) are more likely to be seen by an audience. But newspapers and TV channels are regulated, and can be held legally responsible for the words that appear on their websites (or even their social media channels). Social media platforms have a huge business advantage in that they are exempted from liability by laws that were written long before the platforms themselves appeared: the “section 230” rule in the US (which became law in 1996), and the EU’s ecommerce directive (2000) are used to claim that these websites are services rather than publications, “mere conduits” for what others choose to publish on them.

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[See also: Mark Fisher was not Russell Brand]

No real journalist is surprised that it took four years for the Sunday Times, the Times and Channel 4’s Dispatches to publish the accusations against Brand. A newspaper or TV channel preparing to publish such serious allegations must put together a watertight case, as if they were already in court – because if they don’t, that is where it will end up. Damages and legal costs can be huge – this year, Fox News paid $787m to avoid going to court to defend claims aired on its network about Dominion Voting Systems – and a wealthy celebrity is one of the worst people to defame, because their public image is their business.

Every reporter spends their career with the threat of legal action in mind; the risk to investigative journalists is especially high. A police officer or prosecutor can build a sloppy case, lose, and go back to work (I’m not saying they do, merely that this is possible). If an investigative journalist isn’t sufficiently careful, their job and probably their career will end in court.

The social media attention grifters who “just ask questions” in the spirit of a confected debate are not held to the same standard of truth. Their insinuations are dressed in the language of cowardice – “why am I doubting this?” – but the bolder they become, the closer they get to the point at which someone will decide their statements must be tested before a judge.

After all, the implication that a journalist is part of a cabal that has confected the most serious sexual assault allegations in the interest of pharmaceutical companies is about as defamatory as it gets. There seems to be an expectation that the journalists whose motives are being so egregiously questioned will never sue, because journalists rarely do.

Rarely, but not never. In 1997 the magazine Living Marxism claimed that ITN had “deliberately misrepresented” the conditions suffered by victims of the Bosnian war. The ITN journalists took the matter to court, and were eventually awarded £375,000 in damages (Living Marxism was forced to close by the case).

The convention that journalists don’t sue was the product of an earlier time: when only a few people had a platform, libel law was written to protect the public from the power that gave them. Now, everyone has a platform, and journalists and politicians are routinely subjected to baseless claims. So far the response has been to try to coax the public into having faith in the media with initiatives like BBC Verify – a wet, unnecessary project which to a conspiracist simply looks like the establishment marking its own homework. The Online Safety Bill, which will soon become UK law, does not mention libel or defamation once.

Libel law has been shown to be effective against social media insinuations, however. In a case that is taught in every media law refresher course, Lord McAlpine successfully pursued hundreds of Twitter users who had defamed him in 2012, including people who had only retweeted defamatory posts. The economics have changed, too: as one expert put it to me, “GB News is worth suing”.

I think it is time publishers and broadcasters stood up for their journalists against the cranks, using the firepower that is so often used against investigative reporting – the aggressive challenge of libellous claims in court.

It takes significant courage to stake one’s career on a story, as the journalists of the Sunday Times, the Times and Dispatches have done, to stand up for people they believed were the victims of crime. If they are not vigorously defended by their employers, the cowards who smear those journalists’ reputations will continue to have the upper hand.

[See also: The power of policy posting]

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