Why the USA can't mess with Marco

When a top British chef brought a libel case against the US press, it emphasised two very different legal cultures, says Jonathan Ames
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The Independent Online

The latest show at London's libel circus last week involved more than the standard battle over reputation and damages. It was clash of cultures, both legal and journalistic. Topping the bill was an action which pitted Marco Pierre White, celebrity chef and restaurateur, against the venerable New York Times and its sister publication, the International Herald Tribune. Both papers have long histories of serious, verging on staid, journalism. So how did they end up having to pay out £75,000 in damages plus costs estimated at £400,000, in what is thought to be the first time an English jury has made a libel award against US newspapers? As far as the papers' US lawyers are concerned, it would never have happened in America.

At issue was an interview with Mr White which ran in the spring of 1998. The New York Times only distributes about 160 copies in the UK but the International Herald Tribune has a circulation of nearly 20,000. In an otherwise glowingly complimentary article, one "bombshell" sub-clause of a sentence appeared which maintained that the flamboyant chef had experienced "a well-publicised bout with drugs and alcohol". Mr White vehemently denied the suggestion and immediately instructed London-based solicitors, Schilling & Lom, to seek redress.

The solicitors first sought a published correction and apology. And that is when the English and US cultures first collided. The two papers believed that they could not say one way or another whether the allegation was true. British papers in that situation would generally publish a correction and apology. However, the US journalistic principle is subtly different and involves a degree of hubris.

Simply because an aggrieved party says something is not true, doesn't mean that it isn't true, they would argue. As Adam Liptak, senior counsel at The New York Times, explains: "We were called upon to publish something [a complete correction and apology] that we could not know to be absolutely true. So we published instead an editor's note saying we had relied on his [Mr White's] own autobiographical book, White Heat. And that we had failed our own standards in not putting the statement to him."

Mr White and his legal team considered the editor's note to be a fudge and he pursued his action. But, says Mr Liptak, the point about his autobiography was crucial to The New York Times. In White Heat there is a passage which says he went on a "big bender", but the judge at the trial, Mr Justice Morland, ruled that the book itself was inadmissible evidence and it was never put to the jury. Instead, jurors heard the words but out of context, and on the stand, Mr White said the book had been ghost written and that he had not read it because he was dyslexic. Lawyers for the newspapers were not allowed to say specifically that the journalist had relied on a misunderstanding of that passage, which Mr White now says was untrue and not authorised by him.

Wrangling over admissible evidence would have been academic if the case had been conducted in the US, says Mr Liptak. He maintains Mr White would have been lucky to get an action off the ground across the Atlantic as he would have undoubtedly been viewed as a public figure.

Under the public figure defence - which ironically was established in another action involving The New York Times in 1964 - public figure plaintiffs will only succeed if they can show actual malice on the part of the journalists and the newspaper. In other words, Mr White would have had to have proved that the papers went ahead and published even though they knew the statement to be false. Maintains Mr Liptak: "He could not have proved that because whatever else they might say about us in this case, we published in good faith."

Mr Liptak flew back to New York resigned to the fact that "there was a profound and irreconcilable conflict between two entirely different legal and journalistic cultures". All this sounds like a large plate of sour grapes as far as the chef's legal team is concerned. Mark Thompson at Schilling & Lom points out that the jury's award was the maximum they could make within the constraints of the judge's guidelines, and that Mr Justice Morland hit the newspapers with an indemnity costs order as a sign of his displeasure at the way they conducted their side of the litigation.

The Americans have paid a high price for this culture of clash. "This case was not about free speech," says Mr Thompson of Schilling & Lom. "The newspapers conceded that the allegations were false and should not have been published. The newspapers were distributed in England, my client is English and the proceedings were conducted in England. And an English jury awarded the maximum amount of damages."

Solicitor Amber Melville-Brown from The New York Times' English law firm, Finers Stephens Innocent, responds with a fatalistic view: "It would be unrealistic to allow defendants from different jurisdictions, where they published in the UK, to abide by different rules. And indeed, US newspapers do not expect special treatment when sued in the UK. The cultures on both sides of the Atlantic are immensely different. And although the American, when in Rome, will still abide by their own standards and 'do as the Americans', we would not expect our own British newspapers to act any differently."

While we are perhaps none the wiser over which common law system better resolves libel disputes, we have at least learnt two things about Marco Pierre White: he does not take drugs (and only occasionally imbibes in a glass of wine) and he did not write or read his own autobiography.