The Chilling Effect

"The right to freedom of expression is crucial in a democracy – information and ideas help to inform political debate and are essential to public accountability and transparency in government."

Source Liberty

M'lud, this type of thing should not be tolerated in a modern society
Yes, I am referring specifically to freedom of expression

The UK libel laws - immensely sympathetic to freedom of expression

'Chilling effect' definition: In constitutional law, the inhibition or discouragement of the legitimate exercise of a constitutional right, especially one protected by the First Amendment to the United States Constitution, by the potential or threatened prosecution under, or application of, a law or sanction.'(1)

According to the 'Submission to the 91st Session of the United Nations Human Rights Committee on

Respect for Freedom of Expression in the United Kingdom of Great Britain and Northern Ireland'

The difficulties and cost of defending - or even settling - defamation claims in the United Kingdom are such that they create a serious chilling effect for the exercise of the right to freedom of expression. Faced with a threat to sue, newspapers or publishers will often abandon a story, not because it is untrue but to avoid the substantial burden of defending a lawsuit.(2)

Having little in common with the general political views of journalist Nick Cohen, this writer was surprised to be in complete agreement with him on the threat UK libel laws pose to investigative journalism and human rights activism:

"The human rights group Global Witness was threatened with libel for exposing corrupt central African dictators, as were London solicitors who publicised the plight of west African victims of a chemical spill."(3)

For the record m'lud

Readers of this blogsite may not be aware that under UK libel law, the burden of proof falls on the defendant. What does this mean practically? The recent case of the libel action initiated against science writer Simon Singh by the British Chiropractic Association has highlighted this issue and drawn much support for reform of the UK libel laws. We shall return to the matter of reform of these laws later. For the accused in a libel action almost uniquely in law, guilt is presumed and innocence has to be proved. 'Sir! This statement most assuredly cuts against the grain of the very principles of our esteemed legal system and therefore must be wholly incorrect' I hear you gasp whilst wiping the Twinings superior Earl Grey from your tea-spattered beard and best Stayprest. This does of course seem to run in clear contradiction to the legal tenet of ei incumbit probatio qui dicit, non qui negat (roughly translated the burden of proof rests on who asserts, not on who denies) a central principle of English Common Law (and other legal systems based upon this model). Let us together, sponge ourselves down, and test the above thesis through the tried and tested mechanism of utilising an hypothetical example.

Classic methodology - the 'an hypothetical example'

Claimant W is an organisation - hereafter referred to as The Institution. Claimant W alleges that several of its most meritorious employees of high standing (MEHS) have been defamed let's say... in print or on a website. The medium of the alleged libel is largely irrelevant for the purposes of this hypothetical scenario. Because of what has been written about them, the MEHS claim they have suffered serious damage to their reputations. However, there is one fly in the ointment. For largely unknown reasons, none of the MEHS individually wish to actuate proceedings so they decide on pursuing a claim where The Institution acts on their behalf like like some sort of besuited lumbering umbrella with comprehensive BUPA cover. Having agreed their overall strategy, The Institution issues proceedings through the High Court of Justice for libel against an individual they decide is possibly to blame whom we shall hereafter refer to as 'Individual V', the accused, defendant or for the more cynical among you, the condemned. After providing a witness statement to the Court outlining their beliefs and suspicions, The Institution retires. Individual V then embarks upon the unenviable but necessary task of proving her innocence.

You're right... I'll go with pre-sat in leather

The judgement of Solomon - modern versus vintage leather

It's at this point, where you as a keen reader of this blog are taking full advantage of the womb-like comfort of your favourite wing-backed armchair. It's dark brown leather has seen many an arse and as a consequence retains that lovely worn-in patina whilst affectionately gripping both buttocks firmly. The fire is blazing away, framed elegantly by the cast-iron Victorian fire surround which has only recently received a coat of black fire grate polish. More importantly, your feet are warm for the first time today. All the while you're drawing deeply on the rich rough shag packed tightly into your newly purchased churchwarden as you slowly drift towards the light pacific slumber of a leaf-blown November afternoon. Yet despite this nostalgic inner retrenchment, you're slightly irritated as a student knocks on your office door and you jolt suddenly into abrupt consciousness. 'Sir! you're wasting my time with this liberal cobblers! The legal system will protect the innocent and the speakers of truth. There's nothing awry here!' You certainly do not see it as a potential 'three pipe problem'. Let us however don our best attire sans Hellequin , and jiggle the theoretical components of this hypothetical jigsaw in its box.

Thinking, cycling and smoking...
proving conclusively that chaps are perfectly
capable of multi-tasking

"I swear on the Holy Lible that etc..."

Back to our little moral-lacking apologue. With the freshly burnished shield of The Institution to the fore, the MEHS are supremely confident that they shall triumph. As if inscribed in the Holy Lible, writ large so to speak, everything would seem to favour The Institution. Why? Here's the rub... the reason for the unabashed confidence of The Institution lies firmly in the base impecuniosity of Individual V who is markedly unemployed. It would be almost inconceivable that our imagined MEHS were not aware that by a remarkable quirk of the legal system, Legal Aid is not generally available to fight libel cases. 'Ye gods' you shout in your best attempt at a James Robertson Justice, tumbling vulcanous amounts of red hot ash in your already sodden fly as an unread copy of The Times slips down polyester-clad legs to the reclaimed parquet floor in a crumpled heap. You are now sweating profusely from the upper lip whilst ruminating heavily on the central question 'to what degree does this apparent structural resource disparity impact on the overall process'? Forgetting for the moment the land of make-believe, a real case  might serve to enlighten.

I knew I shouldn't have worn heels...

The McLibel Two**

The most high profile case, seen by many as the David versus Goliath libel case was McDonald's Restaurant v Morris and Steel otherwise known as the McLibel trial. At this moment, this libel case can lay claim to be the longest running libel trial in history running to 313 days in court with an additional 28 pre-trial hearings (some running to five days). Both Steel and Morris were denied legal aid. As a consequence they were dependent on lawyers and trainee barristers providing fragmentary pro bono work. Because of the complexity and intricacy of the case and the nature of the allegations against them, Morris and Steel ended up largely defending themselves. McDonald's were reported as having spent in the region of £10 million on legal costs whereas Morris and Steel's costs were estimated at around £30,000 -£40,000.

Of course it's expensive, it's Saville Row and
one must always look finessed before the beak

What this meant in real terms was that McDonald's could draw upon expert witnesses from around the world, could finance the travel and hotel costs of witnesses and instruct and maintain top barristers and lawyers to provide continuity and solidity to their prosecution. Lacking the financial resources, Morris and Steel patently could not and were to eventually lose the case because of this colossal imbalance in resources. However, in the public eye it is Morris and Steel who are deemed to be the moral victors, a classic case of David versus Goliath. For McDonald's, despite the millions of pounds invested in legal representation, their victory was somewhat pyrrhic being described by various commentators as 'the worst Corporate PR disaster in history'. In 2005, the McLibel Two as they became known, took the British government to the European Court of Human Rights which ruled that Article 6 (sec1), and Article 10 of the Convention had been breached in the course of the original trial:

'The applicants complained, under Article 6 1 of the Convention, that the proceedings were unfair, principally because they were denied legal aid, and, under Article 10, that the proceedings and their outcome constituted a disproportionate interference with their right to freedom of expression.'

"Budgie... I'll have your arse"

Formidable reserves - you've either got it or you ain't!

It may be that the sheer size of organisations can imbue a sense of invulnerability and righteousness and as a consequence, in these sorts of cases there might develop at the outset either a feeding frenzy sort of mentality or indeed its polar opposite; a sense of collective well-being not dissimilar in its corporeal manifestation to that experienced in the lacklustre euphoria of a post-coital Woodbine or two. One can almost hear the strains of 'Oh hallelujah and praise the Lord our God almighty' in the dying gasps of a desolate salt 'n' vinegar stroke.

The real winners are....?

However, little has changed practically in the ability of a defendant accused of libel to secure legal aid to fight a case.  Sadly, most succumb in the initial stages to the immense pressure and apologise and/or settle out of court. Few fight on. And there can be very good reasons. Readers of this blog may also be unaware that a claimant can instigate a 'spurious libel action' resulting in the ratcheting up of massive costs on both sides running into hundreds of thousands or even millions of pounds. Many claimants have utilised 'no win - no fee' agreements with lawyers to embark upon libel cases. They can then choose to drop their case on the eve of the libel trial without fear of suffering any legal penalties? Given this, there is little incentive for lawyers not to draw out libel proceedings in order to ratchet up costs?

Libel - a growth industry

Moreover, many readers may not realise that because the UK's libel laws so favour the complainant, the UK has become home to a phenomenon called 'libel tourism'? What does this mean practically? Let's change the scenery and but keep the characters of our above hypothetical example and say that Claimant W is now an individual of some wealth, based in Saudi Arabia.

A journalist - Journalist V - authors an article which is published in a journal critical of Claimant W. In order to silence criticism and future investigative reporting of Claimant W's dealings, Claimant W decides that Journalist V has defamed him. Claimant W wishes to use the claimant-friendly libel laws and courts of the UK. Armed with his vast reserves of money or alternatively suitably armed with a legal team working on a no-win, no-fee basis, Claimant W will use the UK's extremely sympathetic libel laws to sue the journalist for libel through the British High Courts. 'But how?' I hear you ask.

Could you turn the volume of
your writing down to.. er... zero?

It's rather simple. The journal in which the article is published is widely distributed in Saudi Arabia but sells only a handful of copies in the United Kingdom. This is enough for Claimant W. All he has to do is to prove distribution or that a handful of people in this jurisdiction (the UK) have read the claimed defamatory words (even if they were published in another territory or jurisdiction). He claims he has been professionally diminished or his reputation damaged by the article and he and his legal team board the private train, make their way to first class and simply sit back and wait until they arrive at their destination - shittercarts full of money!

From the above, it is clear the the UK libel laws need drastically reforming. Despite recent changes to the  way libel actions are funded through the use of Conditional Fee Agreements (CFA) or in everyday parlance no win-no fee, prosecuting a libel claims is relatively simple. Defending one on the other hand and accessing the necessary resources do this is at best non-existent and concomitantly immensely difficult and costly to the individual as the McLibel case has demonstrated.

However, the 'chilling effect' of the threat of libel action has far more serious implications for freedom of speech and freedom expression via online blogging as this author knows only too well. The libel laws must be radically overhauled.

Sign the petition for libel reform at Libel Reform Campaign

(1) Webster's New World Law Dictionary Copyright © 2010 by Wiley Publishing, Inc., Hoboken, New Jersey.

(2) ARTICLE 19 GLOBAL CAMPAIGN FOR FREE EXPRESSION Submission to the 91st Session of the United Nations Human Rights Committee on Respect for Freedom of Expression in the United Kingdom of Great Britain and Northern Ireland, Pg 8, sourced at http://www2.ohchr.org/english/bodies/hrc/docs/ngos/Article19_UK93.doc

(3) Cohen N, It's time to change our libel laws, sourced at http://www.guardian.co.uk/commentisfree/2009/jan/30/civil-liberties-libel-law

Disclaimer: The above comments are the opinion of the author. All the events and characters in the above hypothetical examples are fictional apart from those that are obviously real. Any similarity to the name, character and history of any living person, is entirely coincidental and unintentional. All punctuation is of a rather haphazard nature. Moreover, if you were not in line when sense of humour was universally distributed and feel that any of the comments are not amusing, are unfair or you believe you have personally been wronged, please take the time to firstly contact the satirically challenged lecturer before embarking upon an expensive libel action. If you wish to follow this course of action, please state the nature of what you believe is the specific hurt or damage. All complaints will be treated with the straightest of faces and amended if deemed necessary. This blog also operates a right to reply should one feel the necessary urge.

Oh Mr Porter!

Isn't it odd how the Press Association, the BBC and other media see the world? A few members of the British armed forces marching a thousand miles to raise money for the British Legion is seen as a thoroughly positive thing (putting aside for one moment the sticky question of why these wounded 'heroes' who have fought to promote British interests abroad have to rely on charity in the first place). This is pumped out to such a degree that its intrinsic 'rightness' has been absorbed into our collective DNA. An example might be the raising of vast amounts of money through clever little devices or mechanisms such as financial appeals like Help for Heroes or the musical manoeuvres performed by highly talented songers known as 'The Soldiers'.

They're heroes and they're doing a great job...

Charity begins at home

This type of militarisation of society is seen in mediaworld as not only necessary but as a fitting tribute to 'our boys' who are after all, only doing a 'job'. The rising frequency with which these types of images or stories are portrayed on our TV screens some cynical types might argue, is designed to counter negative portrayal of war, the mass opposition to it and the increasing frequency with which the dead and maimed are being boxed up and sent back to the UK. The by-now monotonous regularity with which our screens are filled with the happy-clapping mourners of Wootton Bassett who for some vague reason have taken it upon themselves to act as the nation's carpideiras who see it as their personal moral duty to help 'repatriate' the dead on our behalf.

...apparently 

Rarely mentioned are the tens of thousands of Iraqis or Afghans maimed or slaughtered by 'our boys'. This violence is of course perfectly acceptable because it is conducted under the rules of engagement and as part of the War on Terror. The British troops and their allies are killing to ensure that we can travel on public transport without ourselves being killed. This they do with a well-trained eye on the handbook of war, conducting their campaigns according to very strict guidelines never wittingly targeting civilians. If there are civilian deaths or casualties they are usually reported as 'unfortunate' mistakes or unavoidable 'collateral damage'. If the innocent casualties now and again manage to garner some scrap of airtime, those who take up arms and oppose the invading armies - whatever you wish to call them - suffer singing-from-the-same-hymn-sheet opprobrium. The violence of everyday warfare is very deftly given a makeover that would make style guru Gok Wan fashionably lime green with envy.

This chap's foot made more impact media-wise
than the considerable talents of the
king of the NUS Aaron Porter

Contrast the supine reportage of this sort of state violence to that conducted by a few hundred students angry at the dismantling of state funded university education. The BBC news, Boris Johnson, Channel 4 et al, spoke with one voice in their condemnation of the 'violence'. Of course, those heaving in the windows of Tory HQ couldn't have been the darling progeny of the middle class could they? It must have been organised and led by 'anarchists' or according to one BBC reporter well versed in the use of the Marxist dialectic, the 'Socialist Workers Party'. How did she reach this compelling and incontrovertible truth? Its elementary dear Watson. She'd seen them selling papers earlier on the demo. Ah if only life were as simple as her.

You read it here first

As predicted on this blog last week, students in the UK, fed up with annually strolling around London shouting, have decided to take a leaf out of their French and Greek counterparts' book. They are rightly angry that Nick Clegg lied to them and is helping the Tories hike fees up to an unaffordable level for even the well healed. Some of the more politically advanced students are less than happy with having to pay the bill for an increasingly bankrupt capitalist system that puts profits of corporations before public services and the very notion of a 'public good'. Far from condemning these students, we should be congratulating them. They are undoubtedly the vanguard and a portent of the very near future. They also made sure the demonstration got airtime. If anyone should be condemned it should be that awful excuse for student leadership epitomised by the frightened-of-his-own-shadow Aaron Porter, NUS President. It is the view of this author that this man has all the credentials for a potential future within the ranks of the New Labour hierarchy.

Students... they're lazy, smelly,  long-haired sods!

The press will no doubt over the next day or so, roll out a few vox pop types: over fifty five, grey haired and disgruntled,* who like Mr Porter will without a second thought, condemn the violence of the students. Our generic pre-retirement chap, chafing at the gusset because he's being forced to suffer two years of extra post-retirement harassment from his boss who he thinks is a bald vindictive bastard, will without an original first thought add  that "they should bring back national service". He will not of course consider for one moment the irony in his rather reactionary and ridiculous demand.

*This author is professionally qualified to take the piss out of grey-haired types having been endowed with a fine grey mane. 

For the sake of not wishing to be sued for libel a second time, all the above is nothing more than the opinion of the author and contains no 'facts' whatsoever.

In Addition...

'Journalism without a moral position is impossible. Every journalist is a moralist. It's absolutely unavoidable.' Marguerite Duras

The figures are quite stupendous and dizzying. Stupendous and dizzying but oddly enough for this pitifully indigent scribbler, not surprising.

After the posting on the cost of settling disputes at the University of Salford over the last few years, the figures below were almost immediately provided to this writer by an associate. They were previously provided to him by Stephenson and Wai Yan Loh of Information Governance at UoS in response to an FOI submission.

'The annual spend on legal fees for the academic year 2005/06; 2006/07; 2007/08.

2005/06:  £439,956.35

2006/07:  £355,309.73

2007/08:  £434,934.66'

Total £1,230,200.74

Lawyers - A fact of life

Despite featuring it in smaller print in order to try and make the sums look smaller, it's a whole lot of ackers by any measure. It is however a truism of the common-or-garden variety that any large organisation or public authority such as a University will incur legal costs. For those students of quantum mechanics, it is as unavoidable as the fundamental, unavoidable indeterminacy that supplies the universe with alternative histories. Yet when drawing any conclusions, we should bear in mind as to the primary sources of funding of a public authority such as the UoS, which is disbursed to it largely in the form of government grants under HEFCE (derived ultimately from taxes) and of course student fees.

A principle that has underlay all the issuances that have poured forth ink-like from the metaphorical pen of this writer has been the maxim that as a public authority, the University of Salford, like any other public authority and every other university of the publicly funded sort, should be frugal with public funding. Further, all costs such as 'expenses' and those spent on legal fees should rightly be monitored very closely and be provided and published in a comprehensive yet concise form for the scrutiny by the public. It goes by the names of transparency and its twin, accountability.

Value for Money

A couple of niggling questions did however spring to the fore of this rather befuddled excuse for a cranial-dwelling problem-solver. Firstly, in these days of national impecuniosity with the very real possibility of increased fees for students on the horizon, are the UoS receiving value for money from the legal firms that supply services to the University? Secondly, would it not be best to try and rationalise the delivery of these services and instead of having a list of law firms such as Pinsett Masons, Addleshaw Goddard, Hill Dickinson, and Marks & Clerk, Cobbetts, Kuit, etc*, say whittle it down to say one or two legal firms such as er.... Halliwells Heatons and Eversheds? Could these two firms with their obvious capacity not handle all the disputes, settlements, confidentiality agreements, Employment Tribunals and libel suits between them?

And just when you thought this was quite a large sum... 

This writer among others, has previously on occasions raised the issues of what was widely seen by staff and students alike as profligate spending at the University of Salford. The protests against Project Headroom highlighted this. So did the satirical Vice Consul's Newsletters which lampooned managers in order to highlight the incongruity of staff being asked to sacrifice their posts in order to create financial headroom whilst the UoS invested ever increasing sums in its presence at MediaCityUK in a period of severe global economic downturn.

Thus it would appear odd that in these cash-strapped times of austerity and the 'national interest' that UoS would embark on what might be an expensive lawsuit. Yes, this author can confirm that that senior managers at UoS have pump-primed their metaphorical sat-navs, adjusted their sextants, instructed their legal navigator  Chair of Audit on University Council Mr Ian Austin, and are punching in the coordinates for a very expensive destination known as invest even greater sums in the legal system through the use of the good old freedom of speech protecting English libel laws.

Full steam ahead

You may recall this journey from previous expensive high-profile libel trials. It runs adjacent to cross lawyers and barristers palms with buckets of gold, and concludes somewhere near the Sirius Binary system about 8.7 light years yonder. Along this path we will observe the almost magical manner with which vast sums of tax payers hard-earned and student fees are alchemically converted into fees of a legal variety. A negative into a positive so to speak depending on whether you're studying or practising law.

If nothing else, it promises to be a long journey conducted in the press and more importantly for this writer, under the harsh scrutiny of an increasingly penurious public. As for whom will ultimately stand in the dock, as it progresses behemoth-like, it is likely it will consume vast sums of money, many reputations (both personal and institutional) and careers as it will footfalls, freedoms and years.

Yet there is a final and more pertinent and materialistic question that is nibbling at the peripheral leg-endings of a threadbare pair of 1970s Falmer jeans that have quite obviously seen better decades, and that question is this. In a period of austerity imposed from above, is a 'lorra...lorra...'** money spent on legal fees, barristers and lawyers really the best use of taxpayers pounds and student fees? Answers on a postcard please to: Vice Chancellor Martin Hall, C/O the Old Fire Station, Salford.

A date for your diaries: 

A hearing in the manner of things deemed libellous...


University of Salford 

-v- 

Dr Gary Paul Duke

2pm, 22 November 

Manchester District Registry.

Civil Justice Centre

*Firms said to represent UoS in above FOI requests (undated)
** Courtesy of Cilla Black the singer