Podium: One changed letter can lead to libel

From the Hugh Cudlipp Memorial Lecture given by the libel lawyer to the London Press Club
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MAY I say first, Mr Chairman, how deeply honoured I feel to have this opportunity of speaking to you on this branch of the law - libel - which, from time to time and unexpectedly, impinges upon the lives of many individuals, and upon many corporate entities and, all the time, is a matter which every editor and journalist has to bear in mind.

Its evolvement dates from the earliest times. There are three sanctions indeed in the Bible, for instance in Exodus XXIII: "Thou shalt not raise a false report: put not thine hand with the wicked to be an unrighteous witness."

The basic law of defamation has, however, remained much the same over the years, though, unfortunately, more complicated, and its faults stem from the failure of government to take full account of the recommendations from time to time of committees of experts who have reviewed the law in great detail.

Apart from their unfair burden in the law of contempt, following the passing of the Contempt of Court Act 1981, then disingenuously described as a "liberating measure", I feel that the press are subject to major difficulties, and can suffer unfairly. They do not enjoy the umbrella protection on some matters of general public interest.

Another matter in which, in my opinion, editors of newspapers, and publishers generally, are at a disadvantage is where one individual is misidentified and read to refer to another of the same name, or where, for instance, an article is published which purports to be fiction, but in fact contains circumstances which identify that character with a living person.

The case which occurred in 1940 might be regarded as the high watermark of this issue of identification, with a finding very unfair to the newspaper. The case, Newstead vs London Express Newspapers Limited 1940 arose out of what was, unfortunately, more in the nature of an article than a report of proceedings. It was headed, "Why do people commit bigamy?", and gave the following account of the trial of Mr Harold Newstead for bigamy:

"Harold Newstead, a 30-year-old Camberwell man, who was jailed for nine months, liked having two wives at once. Married legally for the second time in 1932, he unlawfully married a 19-year-old. He said `I kept them both until the police interfered'."

Unfortunately, there was another Harold Newstead, also aged about 30, who also worked in Camberwell, who alleged that the account was defamatory of him, and that he had been reasonably identified to be the person who was referred to in the account.

It was held on appeal that the principles in the famous case of Jones vs Hulton applied and that:

1. The evidence would have justified a finding by the jury that reasonable persons would have understood the words complained of to refer to the plaintiff;

2. The fact that the words were intended to refer to another person did not afford a defence.

I now turn to how editors and journalists may at least mitigate the effects of actual or threatened proceedings.

To me, of primary importance is speed. A prompt decision, if an error has been made, can avoid paying tens of thousands by way of compensation and avoiding tens of thousands in avoidable costs.

The second is to take great care not to amend text or change a headline. There was indeed one case arising out of divorce proceedings, in which the respondent who had to pay damages was the chairman of a well known firm of car dealers. The unfortunate feature of the case was that the original headline read: "Car chief to pay wife pounds 2,000". The compositor concluded that the headline was a mistake and changed the "c" to a "t", so that the report read: "Car thief to pay wife pounds 2,000." That case illustrates how very difficult the task of a journalist can be at times, when even the changing of one letter can lead to a serious claim.

Finally, a word about juries. It would be so much better for fraud and libel trial, which are both sophisticated branches of the law, to reintroduce Special Juries. One should be judged by one's peers, namely one's equals: and surely those with criminal convictions, or who are illiterate, are neither one's peers nor one's equals who should be taking part in the trial of their fellow citizens.

A very last and important point I want to make is that we should work to get away from the lottery aspects of defamation actions. The right of the Court of Appeal to vary damages, I hope, will lead to moderation and more certainty. This will make my task, and that of other libel lawyers, very much more straightforward.