[R-G] [BillTottenWeblog] The Price of Free Speech

[Bill Totten]

A grotesque case of legal bullying using a 13th-Century law shows that
in some respects we still haven't shaken off feudalism.

by George Monbiot

Published in the Guardian (September 16 2008)


So we saw him off. Last week, in a victory for both medicine and free
speech, Matthias Rath dropped his libel suit against the Guardian. But
it seems amazing that the courts of this country allowed him to pursue
this case. Rath, a German doctor, appears to have encouraged South
Africans suffering from HIV to stop using anti-retroviral drugs and take
his vitamin pills instead. Several of them died. It's an important
story, which shows that journalists are of some use after all. But the
Guardian stood to lose hundreds of thousands of pounds for having the
impudence to publish it.

This newspaper is big enough to look after itself, and on Monday it was
also able to settle its legal dispute with Tesco. But the net that Rath
used is now being cast to catch ever smaller fry. In the past few days,
Sheffield Wednesday Football Club has dropped its cases against some of
its fans {1, 2}. I am now allowed to write about the worst example of
legal bullying I have ever seen.

The club has had serious problems, on and off the pitch, and many of its
fans use an internet forum - owlstalk.co.uk - to discuss them. They make
the kind of comments you would expect to find on any talk board, and
which would normally be forgotten within fifteen minutes. Two and half
years ago the club launched its first suit. Only now have the people who
posted these comments emerged blinking from the labyrinthine nightmare
of English law.

As Geoffrey Robertson and Andrew Nicol explain in their excellent book
Media Law (2002), England's defamation laws date back to a statute
created in 1275. The criminal offence of scandalum magnatum was devised
to protect "the great men of the realm" from stories which could stir
the people against them. Three centuries later, the Star Chamber allowed
noblemen to launch civil actions for libel, to provide them with an
alternative to duelling {3}.

They made prolific use of this privilege until Fox's Libel Act of 1792
determined that the claimant (the person bringing the case) had to prove
that the words used against him were false, malicious and damaging. This
means that libel law 216 years ago was more liberal and more in tune
with the principle of free speech than it is today. During the 19th and
20th centuries, Robertson and Nicol show, "the common law was
re-fashioned to serve the British class system from the perspective of
... the Victorian club". To protect wealthy people from criticism, the
courts reversed Fox's burden of proof. They created a presumption that
any derogatory remark made about a gentleman must be false. This remains
the case today. Defamation differs from all other civil or criminal laws
in Britain: the burden of proof is on the defendant.

The law remains the privilege of gentlemen, by which I mean people who
are able to afford costs that often exceed a million pounds on each
side. Cases tend to be resolved by sheer financial might, as the
plaintiffs bankrupt the defendants, or force them to give in before
their money runs out. This ensures that the law retains its 13th Century
function. It guarantees that most attempts to hold the wealthy to
account founder before they are launched, as people bite their tongues
for fear of losing their homes.

Since 1879, corporations have also been able to sue for libel {4}. The
inequality of arms this causes is compounded by the fact that there is
no legal aid for defamation cases. Lawyers are now allowed to fight
these suits on a no-win, no-fee basis, but this freedom is double-edged:
if a defendant loses, he could end up paying double the claimant's legal
costs.

This is the context in which Sheffield Wednesday went to court to demand
the names and email addresses of fourteen people who had posted comments
on owlstalk. Here are some of the comments over which the club sued.
"What an embarrassing, pathetic, laughing stock of a football club we've
become". "Another day, another blunder. I doubt even Leeds were in such
a mess this time last summer, and look what happened to them." "I am
waiting with baited breath to hear who the Chuckle Brothers have signed
after their trip to watch players abroad. With the amount of money they
have to spend and the wages they can offer the best we can hope for is
that little known Transvestitavian International I Sukblodov, who last
scored in a brothel." {5}

Such comments were deemed by the Sheffield Wednesday's lawyers to be
"false and seriously defamatory messages" {6} which had caused grievous
injury to the delicate flowers who ran the club. (They should try
posting an article on the Guardian's Comment is Free site). The lawyers
threatened "proceedings to include claims for injunctions, damages,
interest and legal costs (which could be substantial)" {7}. The judge
threw most of the application out, but instructed the forum's host to
reveal the email addresses of four of the posters, whose remarks seem to
me to be almost as trivial as those he dismissed {8}. This took place a
year ago, and the long shadow of the law hung over the posters until the
club's lawyers dropped the case last week.

Another case dates back to February 2006, when the club sent a warning
letter to a fan called Nigel Short. When he received the letter he
offered to apologise and to change his comments, but the club rejected
this. He was able to fight it only because he found a lawyer - Mark
Lewis of George Davies Solicitors in Manchester - who was incensed by
this case and was prepared to represent him. "I've had two and a half
years of worrying I was going to lose my house", Short tells me. "It's
been hell. If Mark hadn't done this no win, no fee, I would have been
bankrupt by now." {9}

In November 2007, Short was diagnosed with throat cancer. The case
continued. But on Wednesday 3rd September he announced that his
treatment had been successful {10}. On Friday 5th, the club dropped the
case and agreed to pay his costs. It issued a press release which
suggested it had done so because of "Mr Short's medical condition" {11}.
I asked the club whether it had abandoned the case because it knew that
Nigel would now live to fight the action. It has refused to answer my
questions. {12}

The point of this story is not that the directors of Sheffield Wednesday
have behaved like a bunch of petulant bullies. It's that the law equips
them to do so. Most people see this as an issue only for journalists.
But the internet ensures that the law of defamation now threatens anyone
who stands up for what he believes to be right. This autumn the English
branch of PEN, which defends the freedom to write, will launch a
campaign against our libel law. But where are the rest of you? Where are
the petitions, the public protests, the lobbies of parliament? Why is
this 13th-Century law still permitted to stifle legitimate dissent? Wake
up Britain: your freedoms are disappearing into the pockets of
barristers and billionaires.

www.monbiot.com

References:

1. K&L Gates, 9th September 2008. SWFC and others v Neil Hargreaves.
Notice of discontinuance.

2. Irwin Mitchell, 5th September 2008. SWFC and Kaven Walker v Nigel
Short. Notice of discontinuance.

3. Geoffrey Robertson QC and Andrew Nicol QC, 2008. Media Law, 5th
Edition. Penguin, London.

4. Geoffrey Robertson, pers comm.

5. K&L Gates, 10th August 2007. Schedule attached to letter sent to
George Davies Solicitors.

6. SWFC and Others, 14th September 2007. Claim Form v Neil Hargreaves.
Number HQ07X03169.

7. K&L Gates, 10th August 2007. Letter to George Davies Solicitors.

8. Richard Parkes QC, Sitting as a Deputy Judge of the Queen's Bench
Division, 2nd October 2007. Approved Judgment, Case Number HQ07X03169.

9. Nigel Short, pers comm.

10.
http://nigelshort.blog.co.uk/2008/06/24/2008/07/27/they-say-a-picture-paints-a-thousand-wor-4505674

11. SWFC Ltd, 5th September 2008. Statement. This appears to have been
removed from SWFC's site, but I have retained a copy. Please write to me
if you want to see it.

12. Colin Wood, SWFC, 15th September 2008. By email.

Copyright (c) 2006 Monbiot.com

http://www.monbiot.com/archives/2008/09/17/the-price-of-free-speech/


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