Should you sue for a bad review?

The Royal Courts of Justice, London (Image Graham Mitchell/Demotix)

The Royal Courts of Justice, London (Image Graham Mitchell/Demotix)

A recent libel judgment has raised an interesting question: should you be able to sue for a bad review?

I should probably give a little background. This all dates back to a case involving an Amazon thread row between two men, Christopher McGrath and Vaughan Jones. In fact, I’m going to use the exact summary from last week’s judgment by Mrs Justice Davies, lest I be accused of twisting a story that’s a little complicated. Here we go (note – her punctuation, not mine):

[I]n 2010, the claimant [Christopher McGrath] published under the pseudonym “Scrooby”  a book entitled “The Attempted Murder of God: Hidden Science You Really Need To Know”. In the same year, Professor Stephen Hawking and Leonard Mlodinov published a book called “Grand Design: New Answers to the Ultimate Questions in Life”. The book was offered for sale on Amazon, the page on which it was advertised included a facility for users to post reviews. The claimant, as Scrooby, posted a review of the Hawking book, the review is described by the defendant [Vaughan Jones] as “more or less a naked puff of the claimants own book”. The claimant’s review attracted many critical comments. An online argument ensued with a number of contributors including several who were in fact, the claimant using other aliases. One contributor was Vaughan Mr Vaughan Jones. It was he who outed the claimant as Scrooby, questioned the claimant’s marketing tactics, belittled the claimant’s book and publishing business and took issue with the claimant both as to his views and conduct. The war of words spilled over onto the website of the Richard Dawkins Foundation when Mr Vaughan Jones began a discussion on the site complaining that the claimant had threatened to sue him for libel comments made in the Amazon thread.

The claimant issued proceedings in the Dawkins Action on 1 April 2011. The Dawkins defendants subsequently applied to strike out the claim upon a number of bases, all of the defendants applies for rulings on meaning. The claim against Amazon was struck out in its entirety. The claims against Richard Dawkins and Mr Vaughan Jones were struck out as the only actionable aspects of the claims against them, which had survived the abuse of process and meaning applications, were disposed by way of undertakings.”

Jerome Taylor, than of the Independent (now at AFP) reported on the case, and included a quote from Index’s Mike Harris, speaking in his role as part of the Libel Reform Campaign.

McGrath took objection to the article, which he said implied that he had sued merely for bad reviews. So he proceeded to sue the Independent for suggesting that he would sue someone for a review (keep up). According to the judgment, he pleaded*:

A book review is a subjective response and is widely regarded as a matter of opinion, a legally framed objection to which clearly falls into the realm of stifling free speech, which is of course a Human Right protected in international law. Such a claim demonstrably engenders a lowering of opinion of a litigant by ordinary readers and is therefore defamatory.”

So McGrath is, interestingly, claiming that to suggest someone would impinge on free speech by suing for libel is defamatory.

Mrs Justice Davies, however, in her judgment in McGrath v Independent, disagrees:

[…] I accept that there may be certain members of society who view with disfavour or scorn an author suing over a book review, but I do not accept society in general would hold that view. Nor do I accept the claimant’s assertion that suing over a book review is contrary to “established norms of free speech” which would “rightly attract opprobrium in a democratic society.

Further, the claimant’s contention that the institution of libel proceedings in respect of a book review would, of itself, bring upon him ridicule and opprobrium ignored the fact that all libel proceedings impact upon freedom of speech enshrined in Article 10. [my emphasis]. It cannot be defamatory to identify one set of libel proceedings which would attract opprobrium on the grounds of running counter to the norms of free speech when the very fact of any libel proceedings impact upon such a right.”

Which seems reasonable.

I can only think of two recent libel cases involving reviews: Thornton v Telegraph and Goodfellas’ v Irish News.

The former hinged on a mistake made by the Telegraph’s critic Lynn Barber, who, in a review branded as “spiteful” by Mr Justice Tugendhat, claimed that Sarah Thornton, author of Seven Days in the Art World, claimed that the author had falsely suggested she had interviewed Barber, a keen contemporary art collector. It turned out Thornton had, and Barber had forgot when she wrote the review.

In Goodfella’s v Irish News, Caroline Workman submitted a scathing view of a Belfast Italian restaurant, and was successfully sued by the owners in 2007. Workman won on appeal (represented by Lord Lester of Herne Hill) and briefly became a cause celebre among restaurant critics – The Times’s Giles Coren, who normally resents leaving North London, travelled all the way to Northern Ireland to review Goodfella’s in solidarity (£).

A good principle. But I do have a certain amount of sympathy with McGrath’s argument, or at least I understand it: reviews pages are supposed to be places where vigorous and rigorous debate takes place – where are allowed to perform a true, gleeful hatchet job. There’s even a prize to encourage critics to stick the boot in (read last year’s glorious winner – Camilla Long’s review of Rachel Kusk’s Aftermath, at the Hatchet Job of the Year website). And there is at least a perception that people of letters should not resort to the courts because someone was mean about their latest work in the Spectator. They should just bitch about each other at book launches and send in gossipy titbits to Private Eye.

The to-be-enacted Defamation Act 2013 is supposed to allow for greater leeway in public interest journalism. Does a devastating review count?

*This article was amended on 2 August to clarify the source of a quote, and add the word “to” in the phrase “a legally framed objection to which”

PAST EVENT: Lord Lester Introduces His Defamation Private Members’ Bill, 22 June, Free Word Centre

Lord Lester Introduces His Defamation Private Members’ Bill

 22 June

12.00pm – 2.00pm

Free Word Centre

The Libel Reform Campaign presents Lord Lester to introduce his Defamation Private Members’ Bill at the Free Word Centre. On 27 May, Lord Lester tabled his Private Members’ Bill in the House of Lords. At the event he will introduce his Bill, explain what he seeks to redress and his public interest defence.

Free Word Centre

60 Farringdon Road



Libel reform forces its way up the political agenda

It is a matter of no little pride for the libel reform campaign that the first bill to be published under the new coalition government is aimed at reforming the UK’s hideous defamation laws. An issue that was regarded with hostility or disdain at Westminster has forced its way up the political agenda.

Lord Lester’s private member’s bill represents the first concerted attempt to codify the balance between free expression and the right to reputation. It seeks to introduce a statutory defence of responsible publication on a matter of public interest; clarify the defences of justification and fair comment; require claimants to show substantial harm, and corporate bodies to show financial loss; encourage quick and cost-effective settlement of disputes through arbitration without recourse to costly litigation. And, in a nod to the 21st century, it addresses the problems of the internet age, including multiple publications and the responsibility of internet service providers and hosts.

Lester’s defamation bill constitutes a quiet revolution. It sets out, as he puts it:

To reduce the chilling effect on freedom of expression and recourse to self-censorship that results from the vagueness and uncertainty of the present law. It also aims to encourage the free exchange of ideas and information, whilst providing an effective and proportionate remedy to anyone whose reputation is unfairly damaged.

Some free expression campaigners may argue that the bill does not go far enough. It does not, for example, address the burden of proof. But ours is not to cavil: it marks a major step forward, and should be supported as it moves through its legislative stages. The bigger danger is that it is destroyed or watered down beyond recognition, as the government caves in under pressure from those in the legal profession who have made tidy profits from an archaic and unbalanced body of law.

The claimant cabal has already begun to fight back. Addressing a meeting in the Inner Temple a few days before publishing his bill, Lester sought to fend off characteristically smug scoffing from several barristers. They seemed convinced that his bill was an attempt by reformers to ingratiate themselves with newspapers. They deliberately misrepresent the campaign for libel reform as representing media organisations. We do not. We aim to repair a body of law that has seen scientists, doctors, NGOs, bloggers and others forced into apologising for and retracting comments, articles and books, even though they have done nothing wrong. We aim to make it harder for oligarchs and sheikhs to use English courts to stifle free speech around the world.

Opponents of libel reform know they are operating in a changed environment. Since Index on Censorship launched the libel reform campaign last November, in conjunction with English Pen and Sense About Science, we have amassed a groundswell of popular support. More than 50,000 people have signed our petition and public figures have spoken out.

Only recently, however, have politicians begun to appreciate the clamour. The working group, established by Jack Straw when he was justice secretary, was an important first step. Somewhat hurriedly he tried to push through in the dying days of the last parliament new rules that would have slashed success fees for libel lawyers from 100% to 10%. The issue of costs must be tackled again.

Gratifyingly, all three main parties went into the election with manifesto commitments to reform the law. The Liberal Democrats have been the most consistent advocates, and with Nick Clegg firmly ensconced as deputy prime minister and leading on the government’s plans for constitutional reform and civil liberties, the issue is in good hands. The Ministry of Justice is keen on supporting him, but early signals from Ken Clarke, its secretary of state, do not appear to be encouraging. Hopes may fall on his Lib Dem number two, Lord McNally.

All but the most recalcitrant accept that the law needs modernising. It relies on bizarre precedent, such as the Duke of Brunswick sending his manservant to Paris to gather a copy of the Weekly Dispatch which had offended him. But there is a bigger problem. Many lawyers appear perturbed by the idea of free speech. They are comfortable in a situation in which they, and not an elected parliament, rule what information the public has a right to know. They, and they alone, have a vested interest in maintaining the status quo.

John Kampfner is the chief executive of Index on Censorship