Across the pond

British law lords yesterday yesterday struck a blow for serious investigative journalism. They overturned a judgment of the lower courts against the Wall Street Journal ruling that the media could once again use the ‘public interest’ defence when faced with libel actions by rich and powerful figures.

We should not celebrate too much, however. We have been here before. The British libel laws have been famously more restrictive than those in the US, where press freedom is underlined by the written constitution. The First Amendment gives every citizen, and the press, the right to express strong views about the behaviour of those in power. In Britain the dice has been heavily loaded against the press and any ordinary citizen who speaks out against those exercising power; including the whistle blowers who have the courage to reveal abuses of power in the big companies which employ them.

The British defamation law puts the onus of proof on the party making the allegation. That means the newspaper has to prove every allegation it makes. The allegedly injured party does not have to disprove what the newspaper has alleged. On the face of it this seems fair. It seems an extension of the legal principle that the accused is innocent until proved guilty.

In practice it has made it easy for the powerful to stifle serious investigative journalism even before it is published, through the use of injunctions. The powerful can employ the best lawyers to press their case. Even large media organisations, who have to answer to their shareholders for spending large sums of money, find it difficult to cope with such pressures.

The breakthrough came in 2001 when the law lords ruled in favour of the Sunday Times, who had made serious allegations of financial impropriety against the Irish prime minister, Albert Reynolds. The law lords then ruled that the newspaper did not have to prove every single allegation so long as it could show that it had acted responsibly and in good faith. One law lord set down a list of rules journalists should follow in such cases.

This proved unduly restrictive and made it easy for lawyers acting for the powerful to push the onus of proof back on the newspapers. In effect, newspapers had to show that they had got it right each step along the way of a time-consuming and difficult investigation. This is always difficult in serious investigative journalism, because newspapers never get hold of all the facts, and particularly in complex financial cases, the tactical advantage is always with the powerful person accused.

Co-incidentally, the present Irish prime minister is currently facing allegations of financial impropriety in his past, and is fighting to discredit them.

By contrast it is easy for newspapers to attack the powerless. For instance, the school teacher who touches a child, which can be interpreted as assault or sexual impropriety. They have neither the money nor the expertise to enlist the law on their side, so that newspapers can, and do, destroy their careers.

This kind of behaviour gets the press a bad name. And quite right too. But it also makes it easy for the powerful to pose as victims of a vindicative press.

As did Robert Maxwell, the late larger than life media tycoon, when two or three journalists, myself included began to investigate his business activities in the 1960s. During that battle Maxwell libelled me. He wrote a letter to Lord Thomson the proprietor of The Times accusing me of carrying out a ‘personal vendetta’ against him. As a direct result I was taken off the story.

I could have sued him myself. Except that no-one had told me that the letter existed. (I found it on The Times files years later when I was doing another piece of work for them.)

So yesterday’s judgment should be regarded as one small battle won. But the lesson for would-be investigative journalists is that the war is far from won. In Britain, unlike in Russia, the powerful do not kill you. But they can still make life pretty unpleasant.