The judgment in favour of Carole Cadwalladr in the libel action brought against her by the multimillionaire Brexit backer Arron Banks is both extremely welcome and vitally important. It is great news for the public’s right to know and for supporters of a free press – and great news for campaigners against the often oppressive laws that have made London the libel capital of the world.
Those of us who saw Cadwalladr give impassioned evidence in her trial in January were struck both by her commitment to her investigations and by the fact she was fighting a battle that could have led to financial ruin. What will the ramifications of the decision be?, coinciding as it does with government promises to control the increasing number of strategic lawsuits against public participation, or Slapps – where the wealthy use expensive legal procedures to silence journalists?
It must be said that the judge in this case said it would not be “fair nor apt” to describe Banks’s case as a Slapp suit, and that the multimillionaire’s quest for vindication was “legitimate”.
But still there are lessons to learn. Firstly, it will and should remind people, in the wake of the Depp v Heard and Vardy v Rooney cases, that libel actions are not spectator sports, but serious cases involving the rights of journalists to report honestly to the public without fear that their words will lead to lengthy and absurdly expensive cases against them. The government makes much of the “cancel culture” that it seeks now to challenge, but what about the cancel culture of the libel courts, where you either apologise and pay up or fight and risk bankruptcy?
The decision was that of a brave and independent judge, Mrs Justice Steyn. But here, a word of caution: there is no guarantee that others will be as public spirited. Nearly 30 years ago I wrote two articles for the Guardian about alleged corruption at Stoke Newington police station in north London and we were sued for libel by five officers at the station. They had the financial backing of the Police Federation, which had won its 95 previous actions against the press, almost all of them settled before trial to avoid the crippling costs.
In our trial the judge, the late Mr Justice French, was wholly sympathetic to the police. He told the jury they could award each officer £125,000 in damages. We were very lucky that in those days there was a jury and they came down in favour of the Guardian. The Police Federation ended up with a bill of about £700,000. But the Defamation Act of 2013, which brought in the very welcome “public interest” defence which Steyn accepted, also ended the right to a jury trial in libel cases. Banks has indicated he may appeal. But if a less robust judge had sat in Cadwalladr’s case, he might well have been celebrating victory today.
There is another upcoming case also of great relevance to journalism and the right to know, due for a November trial. John Ware, who made the 2019 BBC Panorama programme Is Labour anti-Semitic?, is suing another journalist, Paddy French, for £50,000 over an article that French wrote in response, entitled Is the BBC anti-Labour?. Ware’s 2019 programme was very critical of Jeremy Corbyn and his Labour party allies and French’s riposte, in a pamphlet published by Press Gang, challenged allegations in the programme and said Ware had engaged in “rogue journalism”. Both Ware and French are distinguished journalists with track records of exposing wrongdoing – I have known French since the 1970s through his campaigning work with the Welsh magazine Rebecca – so why should this dispute become a subject for a libel action that has already cost hundreds of thousands of pounds in legal fees? The issue is perhaps not about the rights and wrongs of either the Panorama programme or the response, but it is about whether journalists, who have access to both broadcast and print media to defend themselves, should use libel lawyers to resolve arguments.
One of the major journo v journo libel actions in the last half century was brought in 1990 by Andrew Neil, then editor of the Sunday Times, against the late Peregrine Worsthorne over an article in the Sunday Telegraph headlined Playboys as Editors, which made disparaging references to Neil’s relationship with his then companion, Pamella Bordes. Neil won, but was awarded a derisory £1,000 in damages after the judge, Mr Justice Michael Davies, had told the jury that the case may have involved “much ado about nothing”. Earlier this year Neil tweeted, in response to someone urging him to sue another journalist over a different matter: “Journalists shouldn’t sue journalists. I did once and it was a huge mistake. Never again.”
New defamation laws are now urgently needed to challenge the libel lottery. The National Union of Journalists is currently committed, in the words of its general secretary, Michelle Stanistreet, to seeking “low-cost arbitration solutions to settle genuine disputes and [we] would welcome any moves to level the playing field and ensure journalists and media outlets no longer have to face prohibitive costs”.
We should celebrate Cadwalladr’s victory in the face of daunting and oppressive odds. This is her victory. It is also a public victory. But she should never have been placed in such a situation where her reporting in the public interest placed her in such personal peril. The libel laws still need to be drastically reformed. In March, with reference to Slapps and plans to amend the Defamation Act, Boris Johnson said: “The ability of a free press to hold the powerful to account is fundamental to our democracy and as a former journalist I am determined we must never allow criticism to be silenced.” Actions not words are what we now desperately need, not least from him.
Duncan Campbell is a former Guardian crime correspondent and Los Angeles correspondent