Jhe judgment in favor of Carole Cadwalladr in the libel action brought against her by multimillionaire Brexit backer Arron Banks is both hugely welcome and vitally important. This is great news for the public’s right to know and for supporters of a free press – and great news for campaigners against the often oppressive laws that have made London the libel capital of the world.
Those of us who saw Cadwalladr testify passionately at her trial in January were struck both by her commitment to her investigations and by the fact that she was fighting a battle that could have led to financial ruin. What will be the ramifications of the decision, coinciding with government promises to control the growing number of strategic lawsuits against public participation, or Slapps – where the wealthy use costly legal proceedings to silence journalists?
It must be said that the judge in that case said that it would not be “fair or appropriate” to characterize Banks’ case as a Slapp trial, and that the multi-millionaire’s quest for vindication was “legitimate”.
But there are still lessons to learn. First, he will and should remind people, following the Depp v Heard and Vardy v Rooney cases, that libel suits are not spectator sports, but serious cases involving the right of journalists to report honestly to the public without fear that their words will lead to lengthy and absurdly expensive lawsuits against them. The government makes a big deal about the ‘nullification culture’ which it now seeks to challenge, but what about the nullification culture of libel courts, where you apologize and pay or fight and risk bankruptcy ?
The decision was that of a courageous and independent judge, Madam Justice Steyn. But here, a word of warning: there is no guarantee that others will be as public-minded. Almost 30 years ago, I wrote two articles for the Guardian about allegations of corruption at Stoke Newington police station, north London, and we were sued for libel by five station officers. They had the financial backing of the Police Federation, which had won its 95 previous actions against the press, nearly all settled before trial to avoid crippling costs.
At our trial, the judge, the late Mr. Justice French, was totally sympathetic to the police. He told the jury they could award each officer £125,000 in damages. We were very lucky that at the time there was a jury and they found in favor of the Guardian. The Police Federation was left with a bill of around £700,000. But the 2013 Libel Act, which introduced the much-welcomed “public interest” defense that Steyn accepted, also ended the right to a jury trial in libel cases. Banks has indicated he may appeal. But if a less robust judge had sat in Cadwalladr’s case, he might well have celebrated victory today.
There is another upcoming case also of great relevance to journalism and the right to know, which is due to go to trial in November. John Ware, who made the BBC’s 2019 Panorama program Is Labour anti-Semitic?, is sue another journalist, Paddy French, for £50,000 for an article French wrote in response, titled Is the BBC anti-Labour?. Ware’s 2019 program was highly critical of Jeremy Corbyn and his Labor allies and French’s response, in a brochure published by Press Gang, disputed the program’s claims and said Ware had gone engaged in “rogue journalism”. Both Ware and French are prominent journalists with a track record of exposing wrongdoing – I have known French since the 1970s through his campaign work with the Welsh magazine Rebecca – so why should this dispute become the focus? of a libel action which has already cost hundreds of thousands of pounds in legal fees? The question may not be about the rights and wrongs of the Panorama program or the response, but it is about whether journalists, who have access to both broadcast and print media to defend themselves, should use defamation lawyers to resolve the arguments.
One of the major libel actions between journalist and journalist in the last half century was brought in 1990 by Andrew Neil, then editor of the Sunday Times, against the late Peregrine Worsthorne over a Sunday Telegraph article entitled Playboys as Editors, which made disparaging references. to Neil’s relationship with his partner at the time, Pamella Bordes. Neil won, but was awarded a paltry £1,000 in damages after the judge, Judge Michael Davies, told the jury the case may have involved “much ado about nothing”. Earlier this year, Neil tweeted, in response to someone urging him to sue another journalist on another matter: “Journalists shouldn’t sue journalists. I did it once and it was a huge mistake. Never again.”
New libel laws are now urgently needed to challenge the libel lottery. The National Union of Journalists is currently committed, in the words of its general secretary, Michelle Stanistreet, to seeking “low cost arbitration solutions to resolve genuine disputes and [we] would welcome any move to level the playing field and ensure that journalists and the media no longer face prohibitive costs”.
We should celebrate Cadwalladr’s victory over daunting and oppressive odds. It is his victory. It is also a public victory. But she should never have been placed in such a situation where her reporting in the public interest put her in personal danger. Defamation laws still need to be radically reformed. In March, referring to Slapps and proposed changes to libel law, Boris Johnson said: “The ability of a free press to hold the powerful to account is fundamental to our democracy and as a former journalist I am determined that we must never allow criticism to be silenced. Actions not words are what we desperately need now, especially from him.