Comment: It's not dishonourable to avoid a libel trial. But what was the deal, Mr Murdoch?
Andreas Whittam Smith
Andreas Whittam Smith was a financial journalist until 1985 when he led the team that founded The Independent. The paper’s first editor (1986-1994), he has subsequently been the president of the British Board of Film Classification (1998-2002) and chairman of the Financial Ombudsman Service (1998-2003). He is currently First Church Estates Commissioner responsible for £5bn of the Church's investments, and chairman of the Children's Mutual.
Monday 13 December 1999
Libel is a strange branch of the law. It is generally a civil action, yet it is heard by a jury. And the jury, not the judge, sets the level of monetary damages awarded to a successful plaintiff. Much of the evidence resembles material that is common in criminal cases, yet the police are not involved. Journalists and lawyers do the sleuthing. The results can be horrendous for one or other of the parties - sometimes both - and the costs are often sky high, yet, unusually, legal aid is unavailable. Only wealthy complainants can use the system; only rich publications can defend themselves.
When it is said that London is the libel capital of the world, this is no honour. If, say, a New York magazine offends a rich American celebrity, then provided the publication has some circulation in the United Kingdom, however small, the British courts are the best place in which to sue - or, as the headline in a New York newspaper once put it: "Libel Gripes Go Offshore - London a Town named Sue".
Moreover, the burden of proof lies on the defendant, not the plaintiff. In libel actions, the defendant is guilty until proved innocent and not, as in every other branch of the law, innocent until found guilty. The person or company bringing the action has only to prove that the relevant words have a defamatory meaning, that these words do indeed refer to the person bringing the action and that the defendant was responsible for publishing them. Then it is down to the defendant to prove that the facts stated were true and that any comments were fair.
Three paragraphs in the middle of the statement by The Times illustrate the difficult features of libel actions. In the course of its inquiries the newspaper "published details of US Drug Enforcement Administration files in which Mr. Ashcroft's name is mentioned". This is the first point at which battle will have been joined. Even if it is true that Mr Ashcroft's name did appear, is this news likely to have been received by the average reader as being of no great significance in itself, given that the names of innocent people must often be mentioned in law enforcement documents, or would the "no smoke without fire" reading be more likely?
Mr. Ashcroft naturally chose the most injurious interpretation. His writ for libel alleged: "The Times had implied he was under serious suspicion of involvement in drug-trafficking and money-laundering." On this footing, that is, implying something rather than stating it, the newspaper would still have had to prove serious suspicion or actual involvement. And that in turn would have meant getting the personnel of the foreign agency concerned, and the nationals of various Central American states, into a London courtroom to give persuasive evidence. Even though national news- papers such as The Times have big resources, we have only to state the requirements to see how difficult they would have been to fulfil.
After the direct intervention of the proprietor, Rupert Murdoch, the newspaper put up the white flag: "The Times is pleased to confirm that it has no evidence that Mr Ashcroft or any of his companies has ever been suspects of money-laundering or drug-related crimes." I particular enjoyed The Times' phrase that it was "pleased to confirm...". It conjures up a picture of the editor, with a big grin on his face, hurrying along to Mr. Ashcroft and saying he had really good news for him: "In case you were worried, old boy, we can tell you that there is nothing in it."
Up to this point, the settling of Mr Ashcroft's action against The Times followed the normal pattern. The newspaper had been acting more or less as a principled member of the Fourth Estate. Everybody acknowledges that, together, the media form a powerful opposition party of their own - permanent opposition - in an age when purely Parliamentary checks and balances are less effective than they used to be. And it is accepted that in this respect one of the roles of the media roles is to challenge the bona fides of people in public life, even Tory Party treasurers. So when the question is asked, who or what checks the press, the answer is: the law of libel.
Newspapers make allegations, but if they can't be proved, they pay out in compensation. Geoffrey Robertson QC summed up the situation when he wrote: "In newsrooms libel is the greatest inhibition upon freedom of speech, although it also serves as a spur to accuracy and professionalism".
I have never had any great objection to the way this part of the law works, rough and ready though it is. It is of a piece with newspaper life. When challenged, a newspaper must avoid half-measures - as The Times did not. Either decide to fight to the end, come what may, or immediately retreat and offer an apology, as well as financial recompense if necessary. It is prudent - and proper - to withdraw from a contest if the financial risks appear to be too great.
But the final section of The Times's statement contained a big surprise. Mr Ashcroft declined to insist upon the publication of an apology and a large sum in damages that were his due. We can imagine how much he personally must have wanted both those outcomes. Likewise the Tory Party would have benefited had their Treasurer's triumph appeared more complete. Yet Mr Ashcroft desisted. I agree with those who assume that there is an undisclosed element to the deal with Mr Murdoch. If it were a commitment that The Times would support the Tory Party at the next general election, then it would have been dishonourably obtained. And libel and politics would have intertwined once more.
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