The social media campaign against Rod Liddle, rumoured to be made editor of the Independent, is not just illiberal, argues Hari Kunzru, it is dangerous, censorious, and inexcusable. The centre-left has damaged the culture of free speech in Britain
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This article originally appeared in Index on Censorship magazine 01/99
This year’s round-up of television troubles concentrates specifically on the bullying of broadcasters and asks: are they being SLAPPed around? Julian Petley reports
SLAPPS stands for Strategic Lawsuits against Public Participation. The term was first coined by two US academics who noticed that powerful corporate interests were increasingly threatening environmental campaigners with lawsuits for defamation, conspiracy, invasion of privacy, interference with business and so on. These cases rarely came to court, but nor were they intended to; rather, SLAPPS are a form of strategic legal intimidation or gamesmanship, designed to frighten, harass and distract actual critics, and to discourage potential ones from even voicing their views in the first place. Is this tactic now spreading from the USA and beyond the environmental arena? Let’s have a look at the broadcasting year in this particular light.
Certainly, those covering environmental protests are increasingly
feeling the heavy hand of the law. Indeed so serious is the situation that Patricia McKenna, a UK Member of the European Parliament, has tabled a question at the European Parliament accusing the police of mistreating members of the National Union of Journalists ‘by not
recognising their press cards, arresting them for trespass or obstruction or even, under the Harassment Act (intended to prevent stalking), assaulting them, holding them until deadlines are passed, preventing them from taking pictures, confiscating their photographs with court orders, and erasing their video material, as well as restricting their public access during protests’.
This year a charge of obstruction against a student cameraman covering the 1997 Manchester Airport protest for Channel 5’s What’s the Story? came to light in January when it was dropped after the Crown Prosecution Service offered no evidence, but in August Ben Edwards of Eye Contact, a Bristol video news agency, was arrested while filming a demonstration at a genetically modified maize site in south Devon.
While he was under arrest, his house was searched by Bristol police who removed computer discs, documents and tapes. He was released on bail without charge, but his equipment remained confiscated in what can only be construed as a crude attempt to put him out of business.
Meanwhile, Roddy Mansfield, a video journalist with the Oxford-based Undercurrents group, has been arrested no fewer than six times
and, with the aid of the NU], is now suing the Metropolitan Police. No wonder we see so little coverage of environmental protests on television.
A classic SLAPPS story emerged in June 1997, when Franny
Armstrong revealed that both Channel 4 and the BBC were unwilling to show her remarkable film McLibel: Two Worlds Collide for fear of- yes, you guessed -libel. And this in spite of the fact that the once notoriously litigious McDonalds appears to have been somewhat chastened by their lengthy and bruising court encounter with Helen Steel and Dave Morris. Still, as long as broadcasters tremble at the burger giant’s erstwhile fearsome reputation, the SLAPP syndrome is still doing its dirty work.
In March, a real live libel case came, albeit very briefly, to court, with
Marks and Spencer versus Granada over the 1996 TVorld in Action
programme “St Michael: Has the Halo Slipped?” which revealed that one of their Moroccan suppliers exploited child labour and labelled garments “Made in England”. M&S insisted that the programme implied that it knew of these abuses; Granada denied this and argued that the programme demonstrated merely that the company had failed to monitor its suppliers properly. On the first day of what was expected to be a long and complex trial, Mr Justice Popplewell simply asked the jury whether they thought “Mr Average Viewer” would have taken the progrannne to mean what M&S claimed it meant.
Afrer a short deliberation the jury supported the M&S interpretation, and Granada, not permitted to present any evidence in its defence, was forced to concede and to pay £700,000 (cUS$1.2 m) in costs and damages.
This “sudden death” procedure may cut legal costs by avoiding lengthy libel trials, but such a crudely “common-sensical” approach is hardly best suited to settling highly complex matters of fact and interpretation.
Britain’s libel laws which, unlike those of many other countries, place
the onus on the defendant to prove truth or show fair comment, not only put the defendant at a considerable disadvantage vis-ii-vis the plaintiff, they already exert what has been called a considerable “chilling effect” on investigative journalism. This latest judgement threatens to lower the temperature to freezing point. As Ian McBride, Granada’s managing editor of factual programmes put it: “To have to ponder and second guess our fate in a short-cut route through the libel roulette puts another burden and potential hazard in the way of inquiring, challenging journalism and the communication of important, if uncomfortable, truths to the public.”
Corporate players in this game have also been busily exploiting the
various broadcasting complaints systems. In February, the BBC
Programme Complaints Bulletin revealed that a number of complaints from Sir Richard Evans, chief executive of British Aerospace, about a June 1997 Newsnight report on the Eurofighter, had been upheld. In this context it’s also worth noting that in December 1997, British Aerospace had refused to co-operate with, and then threatened to sue, a Panorama progrannne on the same subject.
Just how sensitive big business has become to journalistic scrutiny was revealed in August when the chairmen of 10 of the country’s biggest companies, including, apparently — “apparently” since the “Watchdog Ten” are peculiarly coy about their composition and activities — Ford, the AA, Airtours, BT, DSG Retail (owners of the retail chains Dixons and PC World), Hotpoint and Procter and Gamble, met to discuss a plan of campaign against the BBC’s Watchdog. Since developing its journalistic teeth, the programme has not shirked taking on the big High Street names, including the above, and the response has been a barrage of complaints, 12 ofwhich have been upheld by the Programme Complaints Unit over the past four years. It’s also worth noting that this year the Broadcasting Standards Commission has entertained (and upheld or partly upheld) complaints about Watchdog from Ford, Dixons and Airtours. Another busy corporate complainant to both the BSC and the Independent Television Commission has been Barratt Developments, a construction company that seems to’ be particularly sensitive to programmes about houses it has built on brownfield [formerly industrial or derelict land] sites.
Nobody, of course, can or should defend stories that don’t stand up.
However, whether the above exan1ples constitute proper use of the complaints systems — especially if complaints are accompanied by threats of legal action — is certainly open to question. Furthermore, ever since the crucial 1993 action between Derbyshire County Council and Times Newspapers, a public authority in Britain cannot bring a libel action because this would inhibit freedom of political speech. Yet, as the powers of public authorities, including governments, daily drain away, and those of big business increase in direct proportion, there is certainly an argument that the definition of what actually constitutes “political speech” needs to be widened.
It could convincingly be argued that the major political forces in the world today are no longer national governments but transnational corporations. In such a situation, and especially given large companies’ increasing willingness to resort to SLAPPs and other “chilling” tactics, is it not time that their legal arsenal was depleted? Would not taking away their much-abused ability to exploit our oppressive and archaic libel laws be an excellent place to start? They do, after all, have other means with which to defend themselves.
This article was originally published in Index on Censorship 05/98
Fear of libel actions and of losing advertising revenue has persuaded most media to leave well alone when it comes to exposing some of the more unsavoury aspects of the burger giant McDonald’s. Julian Petley reports
Do you know that Helen Steel and David Morris, the McLibel two, are scheduled to start their appeal on 12 January 1999? Did you realise the trial judge ruled in the defendants’ favour in the case of two and a half of their seven groups of allegations against McDonald’s, and that these concerned cruelty to certain animals, exploitation of children via advertising, and low pay? Were you actually aware of the trial throughout its record-breaking 314-day run? And finally, have you heard that both the BBC and Channel 4 refuse to show the independently-produced documentary McLibel: When Worlds Collide?
If your answer is “no”, it’s not surprising. Although at the climax of this legal blockbuster the media were awash with “David and Goliath” stories, all too often laced with unnecessary and patronising “human interest” angles, the vast majority of this crucial libel trial received remarkably little coverags. As the McLibel support campaign state on their McSpotlight website: “You would’ve expected the entire media to line up behind the defence, if only out of pure self-interest. But the media seem to treat McDonald’s either with awe or sucophancy, or else as daft and jokey, a well-loved service organisation.” It was, to quote Michael Mansfield QC, as if a “cordon sanitiare” had been placed around the whole subject. It is still in existence.
Admittedly, McDonald’s is a potentially tricky media subject, Firstly, as the McLibel case itself proves, the company is notoriously litigious, or at least it was until this catastrophic legal own-goal.
Secondly, McDonald’s global advertising and marketing budget is colossal (US1,800m in 1995), and media that are financed even partly by advertising risk the company’s wrath at their peril. It is alleged, for example, that when the Independent carried a front-page story about McDonald’s secret attempts to negotiate a settlement after only six weeks on the case, the company withdrew over US$120,000 of advertising from the Independent on Sunday. In 1989, Channel 4 was forced to apologise in court and pay McDonald’s costs after showing Jungleburger, in which the sales director of one of McDonald’s Costa Rican suppliers appeared to admit that beef he supplied to the company had been farmed on ranches created by deforestation.
But mystery surrounds another McDonald’s film which was supposed to be shown on the channel but never transmitted, One Every Mile. A persistent suggestion, however, is that C4 felt that the filmmaker hed been pushed into ceding too much editorial control to McDonald’s.
Both these films are briefly quoted in Dennis Woolf’s exemplary dramatisation of highlights of the trial, the three-hour plus McLibel, shown on C4 just before the verdict was announced. But even this has now run into problems, since the channel is refusing to sell it to overseas buyers unless they indemnify it against possible libel action by McDonald’s. Apparently at least one foreign sale has thus been lost.
All this is as nothing, however, compared to the problems facd by McLibel: Two Worlds Collide, although only the Guardian has seen fit to cover them. Franny Armstrong set up her company, One-Off Productions, specifically to make this film and was among a number of independent producers who tried during the trial to interest the broadcasters in it. ITV told her there was “not enough action”; the BBC didn’t feel “sufficiently enthusiastic”; and Channel 4 decided to put its resourced behind Dennis Woolf.
Nothing daunted, Armstrong carried on filming. She wrote to McDonald’s witnesses, asking to interview them, but the refusal letters came from the company’s press office. So she persuaded Ken Loach to direct dramatised reconstructions of some of their courtroom evidence. She also interested Jane Balfour Films in the idea of distributing the film worldwide. Then, with media interest finally growing as the trial neared its climax, Armstrong struck lucky with the BBC;s Heart Of The Matter and, although no written contract was signed, the film was scheduled for 30 June 1997. The series editor, Anne Reevel, was clearly aware that the film posed certain problems: 60 minutes had to be reduced to 40; Helen Steel and Dave Morris’s clandestine recording of McDonald’s abortive settlement attempt almost certainly infringed BBC guidelines; the use of McDonald’s advertisements raised copyright issues; and, last but not least, there was the question of libel. However, neither the BBC’s lawyers nor Alan Yentob seemed to think the problems intractable, and Armstrong and Reevell worked together to try, in the latter’s words, “To turn the film into something the BBC could transmit.” In the end, however, she had to admit that “it proved impossible to broadcast”. According to Armstrong, “she kept having to send reports to Yentob and await his replies, it was all dragging out, the verdict was getting nearer and nearer and, when it was only 10 days away, Anne felt she couldn’t go on with it.”
When the trial finished, there was a brief but unproductive flurry of interest from Channel 5 and World In Action; then, two months later, Armstrong met Alan Hayling, commissioning editor for documentaries at Channel 4, at the Sheffield Documentary Festival, and interested them in seeing the film. Hayling says he thought it “a strong piece of work for a first-time filmmaker, and I wanted to be able to do something with it”. But he adds “Right away I could see there were clear legal difficulties. The secretly recorded conversation with McDonald’s lawyers was an obvious problem, but there was also the question of libel.
“Anyway I showed it to our legal department and their decision was very clear: nothing resembling this programme could be broadcast in Britain because it was repeating allegations that had already been found to be defamatory in the High Court. If we showed it, McDonald’s was highly likely to sue us and win. Under such circumstances nobody would insure the programme against libel, and every C4 programme has to be insured against that.”
Dennis Woolf got around this proble, by sticking rigidly to quoting verbatim courtroom testimony, but what appears to have swayed Channel 4’s lawyers (more than the BBc’s) is that certain allegations found libellous by the trial judge are repeated outside the courtroom context by some of the participants in the programme. What Armstrong calls Channel 4’s “absolute categorical no” then put the wind up Jane Balfour, who regretfully decided that she couldn’t sell Two Worlds Collide abroad in case foreign TV showings led to her being prosecuted under English libel law.
According to One-Off’s legal adviser, Robin Lewis of Bindmans, “Franny has produced a film in which she has reduced the libel risk to the minimum that is compatible with the kind of programme she wanted to produce. But when you’re trying to assess libel risk you have to take into account not only the wording of an item but also if it is about the sort of person or organisation likely to sue for libel.”
On the first point, Lewis feels “the broadcasters sem to be arguing for a total elimination of all libel risk as opposed to eliminating the irreducible minimum compatible with a programme communicating what actually took place.” On the second, he says, “One has the distinct feeling that is the programme were not about McDonald’s but about Joe’s Cafe, the broadcasters’ editorial courage might return.” However, he also believes that the company is less litigation-prone given the consequences of its “barely rational” decision to sue Steel and Morris. On the other hand, as long as broadcasters continue to show themselves to be intimidated by McDonald’s fearsome past record, the company has little to fear.
Meanwhile, it’s just the audience, hungry for knowledge about a company whose global activities raises some of the most important issues of our time, that’s the loser.
Corporations should be open to uninhibited public scrutiny and criticism argues Julian Petley
Question: what do McDonald’s, Monsanto and Trafigura have in common? Answer: they’ve all been accused of routinely administering SLAPPS. These are Strategic Lawsuits Against Public Participation — forms of strategic legal intimidation or gamesmanship employed by large corporations against their critics in order to frighten and harass them, and tie them in legal knots. Such actions are also designed to demonstrate to would-be critics the fate that awaits them should they dare to publicise their views.
That SLAPPS frequently involve threatening to sue critics for libel makes it particularly important that Index, Sense about Science and English Pen have followed the example of some Australian states and proposed limiting the ability of corporations and associations to sue, unless they can prove malicious falsehood.
In this, they are following directly in the tradition of the McLibelTwo, the heroic Helen Steel and Dave Morris, who successfully argued before the European Court of Human Rights in 2004 that they had been denied a fair trial when they were sued for libel by McDonald’s. The court decreed, the denial of legal aid to the defendants “deprived them of the opportunity to present their case effectively and contributed to an unacceptable inequality of arms with McDonald’s”. However, another plank of their case was that “multinationals should not have a right to sue their critics for libel. It is of the highest public importance that corporations such as McDonald’s should be open to uninhibited public scrutiny and criticism, particularly on issues of public interest such as diet and health, advertising, the environment, employment conditions and animal welfare”. Citing the fact that public authorities are not permitted to sue for libel because it is widely recognised that “the threat of civil actions for defamation places an undesirable fetter on the freedom to express criticism”, Steel and Morris argued that “such protection for freedom of expression should apply and should be applied to multinational corporations, particularly those of the nature and scope of McDonald’s. Multinational corporations are often more powerful and generally have less accountability than elective bodies”.
Although the court agreed that the pair had indeed been denied a fair trial, it rejected this part of their argument on the grounds that it did
“not consider that the fact that the plaintiff in the present case was a large multinational company should in principle deprive it of a right to defend itself against defamatory allegations or entail that the applicants should not have been required to prove the truth of the statements made. It is true that large public companies inevitably and knowingly lay themselves open to close scrutiny of their acts and, as in the case of the businessmen and women who manage them, the limits of acceptable criticism are wider in the case of such companies … However, in addition to the public interest in open debate about business practices, there is a competing interest in protecting the commercial success and viability of companies, for the benefit of shareholders and employees, but also for the wider economic good. The state therefore enjoys a margin of appreciation as to the means it provides under domestic law to enable a company to challenge the truth, and limit the damage, of allegations which risk harming its reputation”.
In other words, if the British government chose to allow large corporations to sue for libel, it was within its rights to do so.
Arguing for a change to the defamation laws in this respect could well turn out to be one of the most challenging tasks facing the Libel Reform campaign. Let me explain why.
Back in Index on Censorship in 1998 I wrote that “although at the climax of this legal blockbuster the media were temporarily awash with ‘David and Goliath’ stories, all too often laced with unnecessary and patronising ‘human interest’ angles, the vast majority of this crucial libel trial received remarkably little coverage”. As Michael Mansfield QC said at the time, it was as if a cordon sanitaire had been placed around the whole subject, although one should note the excellent contributions throughout the case of Joshua Rozenberg (Telegraph), John Vidal (Guardian) and Danny Penman (Independent). There were a number reasons for this.
First, given the then fearsomely litigious reputation of McDonald’s, media organisations were scared of being sued if they put a foot wrong in their reporting of the case. Second, newspapers feared losing advertising by McDonald’s if their reporting of the trial irked the burger behemoth. Indeed, it is alleged that when the Independent revealed on its front page, six weeks into the case, that McDonald’s had attempted to negotiate a secret settlement with Helen and Dave, the company withdrew over $120,000 of advertising from its sister Sunday paper. But third, and perhaps most important of all, in a battle between, on the one hand, two out and proud anarchists, and, on the other, a familiar fixture in every High Street which does its absolute utmost to promote a cosy, family friendly, indeed lovable, image, which side would you expect most of Britain’s overwhelmingly conservative press to take? Not that of Helen and Dave’s, whose description by Brian Appleyard as “grumpy, disaffected anarchists with chips – sorry, french fries – on their shoulders” all too clearly summed up the attitude of much of Fleet Street towards them at the time of their mammoth trial. The fact that this was actually written in a liberal newspaper simply reinforces the point.
The hostility resurfaced in significant sections of the press when Morris and Steel won their case at Strasbourg in 2005. And, of course, they weren’t exactly helped by the fact that the organisation which had found in their favour was a particular hate object for many right-wing newspapers, namely the European Court of Human Rights. What a lethal combination.
The Sun reported that “Euro judges yesterday ripped up Britain’s libel laws” and that “the ruling may force Britain to pay out millions in taxpayer’s cash in legal aid for libel cases”. The message here is somewhat implicit, but much more forthright was the same day’s Telegraph, which marked Morris and Steel’s victory with a leader entitled “How lawyers get rich on bogus human rights” which began: “If you were asked to come up with a basic list of human rights, who would think of including ‘The right to be rude and inaccurate’ among them?” It claimed that this was essentially the right that the court’s judgement had upheld and that what the court had effectively said was that “we taxpayers should foot the bill for individuals to malign corporations and other individuals”. Exactly the same line was taken the same day by a leader in the Mail, which complained that “once again, ‘human rights’ legislation is playing fast and loose with British justice. And the implications are deeply worrying. The floodgates are now open to anyone to say what they like about the commercial world, be sued, and then have their costs funded by the taxpayer”. And in the same paper in a column headed “We’re all victims now”, the inevitable Melanie Phillips echoed the Telegraph (and that’s putting it politely) in her lament that:
“This week, Strasbourg judges bestowed upon us longsuffering Britons yet another so-called human right – the right to be rude and inaccurate about someone at public expense … The European Court of Human Rights effectively said that taxpayers should foot the bill for individuals to malign corporations and other individuals … Almost every day, it seems, the human rights industry throws up fresh absurdities as it trains its legal guns on what it deems to be unfair or prejudiced”.
So keen were these papers to use this case to bang the drum for their usual anti-human rights, anti-juridical crusades that they appeared to have entirely misunderstood (or simply ignored) what the case was actually about, namely the right to a fair trial. As it happens, both the Mail and Telegraph were themselves guilty of inaccuracy, since they omitted to mention that at both the original trial and the subsequent appeal, several of Morris and Steel’s claims about McDonald’s were upheld. But the crucial point, which was entirely absent from these papers’ coverage, was that the court found that the pair had been denied a fair trial. That McDonald’s won an unfair trial proves absolutely nothing about the truth or falsity of the allegations over which the company dragged them through the courts.
Precisely the same inaccuracies informed a piece by Graham Searjeant, the financial editor of The Times, in a piece headed “This week of hate is depressing for the idealists”. But this also broadened the issues involved by linking the Strasbourg verdict with the Kyoto Treaty which came into force the same week and which he described (regretfully) as “a wonderful pretext to attack Western consumers and multinationals”. In Searjeant’s view,
“the judgment was on a narrow issue. British taxpayers had a duty to pay for a high-priced defence team. At this level it is just another case of once high-minded lawyers acting as the marketing arm of their own trade association. The implications are more serious. The court found it unfair that the ‘McLibel two’ should have to prove all the allegations they spread and that the libel action had disproportionately interfered with their freedom of expression”.
However, the right to a fair trial — which is what the case was actually about — is about as far from a narrow issue as it’s possible to get, and the main point of the case, as we have seen, was not the defendants unwillingness to prove the points in contention but their immense difficulty in doing so given the grotesque disparity between their resources and those which McDonald’s could afford. But according to the logic of Searjeant’s inaccurate and ill-informed piece, “under this new tyranny of liberalism, no clear line is to be drawn between researched fact and propaganda smears”, and he warned of a future in which “we can already see campaigns beginning against Tesco, Cadbury Schweppes, food manufacturers, drug companies and most of all oil multinationals without necessary regard for truth. They are all fair game”.
The argument advanced by English Pen, Sense about Science and Index on Censorship that large corporations should be treated in defamation law in the same way as public authorities has an unimpeachable logic. However, it is unlikely to find as much favour as some of the other recommendations in Free Speech is not for Sale, either with a government which is notoriously unwilling to antagonise corporate interests or with newspapers (and indeed other commercially-funded media) which are not only extremely business-friendly but which are themselves big business epitomised. But that’s no reason not to try. The Libel Reform Camaign should take great heart from the fact that the QC who advanced precisely this argument at Strasbourg (and who generously helped Helen and Dave pro bono throughout their epic struggle) was one Keir Starmer, now the Director of Public Prosecutions.
Julian Petley is professor of Screen Media and Journalism in the School of Arts at Brunel University
FROM THE ARCHIVE:
SLAPPS and chills (Index on Censorship 01/99)
Libel: an unsavoury business (Index on Censorship 05/98)