Naturalist and TV presenter Chris Packham arrives at High Court for the second day of his libel case against Country Squire Magazine. Picture Credit: Vuk Valcic/SOPA Images/LightRocket via Getty Images

Silenced squires

Packham’s victory in court saw a very big stick wielded against a very small publication

Artillery Row

At first sight, there was nothing untoward about Mr Justice Saini’s decision last Thursday that Country Squire magazine had libelled green activist Chris Packham by accusing him of journalistic dishonesty over animal rights and heather-burning. The editor, and the author of the article, went down for £90,000 plus generous costs, awarded on the so-called “indemnity basis” because of their unpleasantness to Packham and their insistence on a hopeless defence of truth. The great and the good generally approved. The magazine had got its facts wrong, and led a remorseless campaign against the TV naturalist; by failing to put the story to Packham or check the facts it had deprived itself of any defence of privilege. This was a salutary lesson, said most commentators.

In law the decision was clearly correct. Packham had Country Squire bang to rights, and the amount of the damages and costs the judge awarded was impeccable. And yet … if you look more closely, this is an event that should worry all of us.

The public interest defence takes little account of the new era

For one thing, viewed from the point of anyone but a libel lawyer, £90,000 – about an MP’s actual salary before tax and well over three times the national average earnings – seems a lot for what at bottom was mud-slinging by a person who believed his allegations to be true. For all their immediate effects on Mr Packham’s amour propre and self-importance, these statements made in a niche magazine, together with their ephemeral tweets and retweets, would have been forgotten in a month or two. And stinging magazine and writer for “indemnity” costs, the most generous basis for a court to award them, because of their use of the kind of strong and earthy language that appears on Twitter every day may be legally impeccable, but to anyone with a feeling for free speech it looks like overkill.

And that leads us to the real difficulty. This ruling embodies a clear threat to free speech and our right to read a variety of views.

The problem is that these days, while some interesting and contrary commentary on public affairs comes from the established media, most doesn’t. A great deal comes in web-based sources and in smaller, alternative publications, such as Country Squire. Unlike the mainstream media, these are often neither seriously commercial nor well-funded. Writers, when paid at all, generally receive pretty basic sums, and are very often amateurs. Publications of this kind don’t claim balance, and they certainly don’t have pretensions to impartiality.

That should not be an objection. Yet it is precisely these publications who it is now clear are in the legal cross-hairs if they should ever get a fact wrong. Essentially Country Squire and those like it have to suffer for not having the kind of sleek fact-checking protocols to be expected at the Times or the Mirror. And those who write for them are penalised for being amateurs who say what they think rather than weigh their words to fit editorial guidelines. For them the public interest defence to protect the press which they (unsuccessfully) invoked in the Packham case actually demands a difficult check-list. They must show that what they wrote was in the public interest, that they formed a positive opinion that it was, that their opinion was reasonable, and that they acted in a way seen as responsible. This is fine for professional journalists writing day in, day out, but tough on an amateur with an axe to grind and the advantage of a new media world in which to grind it. Nor is this surprising: the public interest defence takes little account of the new era. Though now contained in 2013 legislation, it effectively dates from a judicial decision in 1999, a time when journalism was largely limited to established outlets and professional writers.

From now on, the result is likely to be a big chilling effect on the independent media. Imagine a small, perhaps campaigning, magazine thinking of running an opinionated article about a person with a public profile. We are now likely to see smug but ominous warnings from the latter’s well-paid lawyers that getting its facts wrong could lead to ruin for both it and the writer unless it runs the kind of checks to be expected from a professional outfit: warnings at which even the bravest editor is likely to quail. The result will be – as one suspects many people in the public eye would like to see – less pungent journalism and discussion from all but the largest and best-funded outfits, increasing unwillingness in amateur writers to engage in outspoken debate on social media, and probably a reduction in the number of smaller magazines.

Is there a solution? Actually yes, if we’re brave enough to adopt it. In the United States, ever since the 1960s libel law has been constrained in the name of freedom of speech by a legal doctrine called the “rule in New York Times v Sullivan”, named for a case of that name, under which (put briefly) a public figure cannot sue for libel in respect of anything respecting his public persona unless he proves that the publisher knew he was telling an untruth or at least thought he might be and deliberately shut his eyes. The contrast with the English position is palpable: mere honesty suffices, with no requirement to follow any fixed procedures or satisfy some requirement set by the journalistic great and good of acting “responsibly.”

Ought we to introduce the American rule here? We not only should, but must. The rule was introduced by a percipient Supreme Court in Washington precisely because public figures who didn’t like being criticised (in the actual case it was methodically racist police chiefs in the Deep South) were using libel to warn off journalists from attacking them, and to face them and their papers with potentially ruinous lawsuits if they persisted. The parallel is clear: if we don’t do this, criticism of senior figures in the media and elsewhere will increasingly be limited to earnestly-researched and moderated pieces that the mainstream media can get past its insurers and risk-averse libel lawyers.

Those same voices that were raised in denuciation of tub-thumping right-wingers like Aaron Banks taking Carole Cadwalladr to court, are now cheering on Packham’s legal crusade. Everyone will have their sympathies for different situations, but if we are to have a press free for all, and not just those who can afford lawyers, fact-checkers and libel damages, we must shift the balance of libel law to a presumption in favour of free speech, such as exists in the US.

The great and the good may see the American practice as a vulgarity that we, with our European sophistication, are well free of. Indeed one suspects that many such people quietly pine for a return to the days when the reading public was limited to what it could get from a relatively small number of newspapers, magazines and broadcasters which might vary in detailed views but broadly followed much the same corporate agenda.

But the choice is now clear. Leave the law as it is, and while activism will flourish discussion of public affairs will slowly drift back to a lethargic and frankly reactionary professional class out to give us what it thinks is good for us. Change it, and not only will the vast majority of activists continue to proselytise but the rest of us will have the ability to listen to all opinions – the responsible, the irresponsible and the plain batty – and make up our own minds. It really is, to use a vulgar phrase that the mainstream media tend to eschew, a no-brainer.

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