Law: The fine line between sense and censorship: Sharon Wallach talks to Keith Mathieson, the lawyer currently responsible for checking this newspaper for defamatory comment

Sharon Wallach
Thursday 08 April 1993 23:02

ONLY in the newspaper world is 'lawyer' a verb. Copy that has been 'lawyered' has been checked for defamatory comment by the publication's solicitor or barrister.

The potential for libel is enormous, with millions of words being churned out day after day. Most newspapers employ lawyers in-house to read copy, or have a shifting succession of so- called night lawyers. The Independent has a slightly unusual arrangement, with an outside firm of solicitors, Oswald Hickson, Collier & Co, providing lawyers on three-month secondments.

The current incumbent is Keith Mathieson, a partner with the firm. He arrives at his desk in City Road in mid-afternoon and stays until after the first edition has gone, at around 10.30 or 11pm. 'I'm on hand to deal with particular requests to look at copy, but I also read, or at least skim read, the entire paper,' he says.

Mr Mathieson's firm has a flourishing media department of around a dozen lawyers. Their clients are principally newspapers and magazines, with some television work.

'We spend our time giving pre- publication advice on libel, contempt, reporting restrictions, copyright, breach of confidence and so on, and dealing with claims of those kinds against papers,' he says.

Many firms deal in libel work; relatively few also offer pre-publication advice. 'We are brought in much earlier, particularly by the smaller papers, when proceedings are threatened,' Mr Mathieson says. 'It's much more interesting to be involved from the beginning. A lot of the time a libel claim involves going over what the journalist has done, and researching his or her position.'

The role of the libel lawyer is sometimes misunderstood, not least by the journalist, Mr Mathieson says. 'It's not my job to stop defamatory material going into the paper. I am not a censor. I am there to ensure that unintentionally defamatory stuff doesn't get in. Where a defamatory statement is made, I have to ensure we are in a position to defend ourselves if and when a complaint is made.

'I'm not saying to the journalist you can't publish this. I'm saying if you do publish, there may be a risk; our evidence is not strong enough in a particular area.'

What Mr Mathieson hopes to achieve is a measure of agreement as to what is proper to publish. 'A newspaper isn't, for example, going to drop an allegation of fraud from a business story just because I think it should. It has to be persuaded that the facts don't support the allegation,' he says.

'Some journalists take the view that lawyering is a bad thing, that British libel law is too strict, but I think they are inclined to exaggerate. Most people agree that if you accuse someone of criminality of some sort, you should only do so with pretty clear evidence.'

You could argue, Mr Mathieson says, that the libel law encourages good, conscientious journalism. Difficulties can arise where the journalist has good sources and good grounds for believing his or her story to be true. The lawyer has to insist on hard evidence and witnesses. 'Off the record' conversations with the Serious Fraud Office or the Department of Trade and Industry may not be good enough.

'Unfortunately, there are some promising stories which turn into damp squibs once the lawyer's been at them,' Mr Mathieson says.

When the lawyer has done his work, it is then up to the journalist, and ultimately the editor, to make an assessment of how great the risk of libel proceedings may be, or how important it is for the story to see the light of day.

The standard of journalism on this paper is very high, Mr Mathieson says. Journalists know when to consult the lawyer and it is fairly unusual for him to pick something up on his own initiative, something that has slipped through the net on to the proof pages.

When it does happen, it is usually in an unlikely place - the radio preview page, for instance - but it is the 'harder' parts of the paper, such as home news or business, which Mr Mathieson describes as 'my best customers'.

The business section is an obvious candidate for his attentions. 'It's a highly regulated area and there are a lot of shady characters out there, and also a good deal of secrecy,' Mr Mathieson says. 'It's often quite difficult to get at the truth so there is a lot of scope to make assumptions about certain activities.'

But the lawyer's work must encompass every section, including readers' letters and advertisements, as the paper is liable for everything it prints.

Back at Oswald Hickson Collier, a colleague is preparing for the next secondment. 'It's very good experience and training for us - to see how it is done on the ground, to understand how a paper is put together and the pressures people work under,' Mr Mathieson says.

'The other useful thing about being here is that if the reporter is working on a long, interesting piece, I can see it at an early stage. It's easier to sit down with the journalist and go through the piece and make my own assessment of how good his sources are. If he keeps staring at the floor, you get a good idea that he is not wholly confident and the story should perhaps be changed. That sort of thing is not so easy on the phone.'

Like all newspapers, the Independent faces its share of libel actions. 'It wouldn't be a very good paper if it didn't,' Mr Mathieson says. 'It would have to be a very conservative paper if it didn't attract solicitors' letters or libel writs.'

It is impossible to guarantee 100 per cent accuracy. 'Accidents do happen and most libel actions result from misunderstandings, not the journalist deliberately trying to stitch someone up and maliciously damage reputations,' Mr Mathieson says.

Misunderstandings can be largely avoided by basing a story on the widest possible range of sources, checking and double checking, and most important, 'if you are accusing someone of something, making sure you give them the right to reply'.

But, Mr Mathieson adds, people are not always available, calls not always answered, messages get garbled, sources sometimes talk in coded or ambiguous language for all kinds of reasons, so the cardinal rules are not always rigidly complied with.

'One of the jobs of the lawyer is to try to cover that eventuality in appropriate cases. You can't hold the hand of the journalist - you would become pretty unpopular if you kept asking 'have you checked this?'. At the same time, where appropriate, the lawyer's job is to make sure the right practice is adopted.'

(Photograph omitted)

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