Category Archives: the power of lawyers

Protecting journalists from libel lawyer bullies

The extent to which it is becoming much harder for journalists to report the truth was demonstrated by a couple of recent incidents.

Lawyers for major organisations and powerful individuals are, like their clients, only really concerned about controlling media coverage that is both accurate and critical; and they are happy to try and bully media outlets who do try to do this.

So it is important that the writers and broadcasters who take them on are confident they have the backing of the organisations they write for.

Sadly this principle, which has been adopted by every organisation I have written for until now, is no longer universally practiced.

I received an email from the legal department of the online publication Middle East Eye for whom I wrote an article last year. For a number of reasons, including the fact that they are the meanest payers I have worked for in many years, I have no intention of writing for them again.

Even so, the email’s contents were disturbing. Among a series of legal constraints and restrictions was one which essentially said that contributors were on their own when it came to defending themselves against libel and other actions. It was up to them to get their own libel insurance.

In nearly 40 years as a journalist, I have been sued for libel only once (even then it was the editor only who appeared on the writ) and been threatened by governments and corporations on a few occasions. So I am hardly at the cutting edge of investigative reporting.

But I have a number of close friends and colleagues who have been extremely resilient in the face of quite appalling legal and other attacks. I have worked for newspapers whose editors have also come under considerable pressure. I have also edited publications with articles on sensitive subjects in sensitive parts of the world.

And I have carried out my professional work for national and other newspapers in a culture where you do report as accurately as you can; where commissioning editors and sub-editors challenge your facts and interpretations; where there is something potentially defamatory, the publication will consult its lawyers; and where the editor will accept responsibility for everything that goes out under the masthead of his publication – whether he has seen it or not.

Individual journalists could in this culture of course still be sued for libel when they get it wrong. But they were not on their own. They benefitted from a shared editorial and legal responsibility, which gave them confidence to pursue legitimate targets; and the scrutiny of editors, sub-editors and in-house lawyers usually ensured they did not pursue non-legitimate ones or failed to do their research properly.

This partnership between the reporter or commentator and his publisher matters because no individual can afford either the money or the time to take on the massive power of the legal and press departments of governments, organisations or corporations.

This is particularly important because Britain’s libel laws put the obligation on the writer and publisher to prove their case – in other words they are guilty until they prove their innocence.

This means that a threatening letter is often used as a deterrent to stop publication. When a large organisation or wealthy individual starts legal proceedings the writer or broadcaster has to invest considerable time and money in their defence whether or not the legal action actually makes it to court.

This is bearable when the publisher stands up for the journalist. If individuals have to shoulder all the risk, they will inevitably be more reluctant to take on the powerful. It is a fact of human nature, which benefits only those in power.

What for example would have happened if the Sunday Times reporters investigating Lance Armstrong and the IAAF had been left to fend for themselves.

The latest issue of the Sunday Times (January 3, 2016) details the way in which the IAAF “authorized a series of legal warnings” from the solicitors Bird & Bird to the journalist who exposed the Russian doping conspiracy.

The journalist, Hajo Seppelt, received three letters over a period of months warning him that if he published anything inaccurate or defamatory there would be legal consequences, a clear attempt to deter him from publishing.

In 2004 the Sunday Times received a letter along similar lines from Lance Armstrong’s solicitors. Even though the paper stuck to the truth it was still sued.

These are not isolated instances. My friend and colleague Mihir Bose has often been faced with difficult choices as an independent investigative journalist.

He has conducted many inquiries into the affairs of sporting bodies and individuals, as well as companies and organisations. He argues that the backing of newspaper groups, such as the Sunday Times and Daily Telegraph, and his book publishers gave him the confidence to resist the pressure from the other side’s lawyers and report stories he was certain were true.

“Had I been a freelance or had the newspapers and publishers refused to back me or withdrawn their support, it would have been very difficult – if not impossible – to take the risk of publishing stories I knew to be accurate,” he says.

These examples show that, given the British libel laws, it is hard enough for courageous reporters to challenge powerful organisations, whether governmental or corporate, when they have the support of their publishers.

When even this protection is taken away, as appears to be the case with Middle East Eye, the only beneficiaries will be those who are already too willing and able to abuse their power.