Dear Nikolai Tolstoy
You have asked the European Court of Human Rights to judge whether a £1 .5m libel award against you was fair. A crime and civil liberties barrister wis hes you well
Wednesday 25 January 1995
Your pamphlet said that Lord Aldington sent 70,000 Cossacks to almost certain death in Austria at the end of the last war. A High Court jury found that to be libellous. As libels go, it was a huge one. Its kernel is not even confined to alleging mass murder. It connoted a man with no conscience about his acts; someone prepared to affect a high sense of public duty, while being truly a war criminal of Nazi proportions.
The £1.5m in damages you were ordered to pay, however, defies justification according to any principle in a sane society. On the face of it, even Lord Aldington thought that, since he accepted £300,000. You were bankrupted, Lord Lester told the Strasbourg court.
But the real point you have is not proportionality but the guardianship of freedom of expression. Self-expression is a significant instrument of both freedom of conscience and self- fulfilment. The ability to live life according to choice - though chosenfrom a range of reasonable options - is what we all seek. We express those chosen values through words and actions alike. Liberal society should encourage circulation of the widest possible range of ideas.
These are all truisms. So is the need to protect others against identifiable harm. You had the freedom to choose to publish. You must have known the risks. That balancing exercise, if it brings those truisms to mind, is healthy.
What is worrying is that the damages sledgehammer can be a disguised form of prior restraint. Sometimes it is socially useful to utter, even if there is a penalty to follow. Many wished to blow the gaff on Robert Maxwell but were bashed to silence by writs.
The right maxim is "Be free to publish and take the risk of being damned". Article 10 of the European Convention outlaws all interventions in freedom of expression not prescribed by law. Your case is that jury damages, without tighter guidelines from judges, are awarded without principle and are too vague.
Should there be fixed tables of libel damages? The Criminal Injuries Compensation Scheme has been able to price a broken leg. Is it practical to draw up a defamation tariff? That way there would be a ceiling. And the ceiling would be known - not least tothe florid war historian when he balanced up the truisms.
As it was, you did not know the risks: you had no way of measuring what the damages could be. That fear of the unknown would, and does, deter many.
The European Court should define what the consequences of defamation should be for clarity in a liberal democracy.
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