Calls for libel law reform are misguided. Journalism is intended to be
harmful and journalists who don’t like risk should go elsewhere.

Sometimes a practising journalist wonders whether his or her current project
is investigative. There’s a good practical answer: if you’re scared, it might be.
If you’re not scared, not. As in other occupations, scale effects apply. It’s all
right for small investigations to be just a little scary. But a big one has to be
terrifying, to be genuine. Naturally, this is one of those necessary-but-not-
sufficient things. Fear – which you must never display, of course – doesn’t
prove you’re in the right, or doing the right thing. Only, if it’s not anywhere in
evidence, either the story is a phoney, or society will be improved if you are
put into another line of work.

Under our libel law as it stands, the latter event will probably occur
automatically, rather soon. But there are worthy people who would like that
to change. In the opinion of the Financial Times, of many practitioners
elsewhere and, a little more surprisingly, the recently-departed Director of
Public Prosecutions, Sir Ken Macdonald QC, the law is far too frightening for
journalists. It should be so altered as to assume that a journalist who makes
damaging allegations about some individual or organisation is revealing
truth to the public. It will be up to the accused to demonstrate that it ain’t so.

Underlying this proposal is a proposition: that many latent investigators
exist who would arise and expel the moneychangers from the temple – if only
the activity was not so daunting. Well, the temple surely needs hosing out.
But my submission here will be that the FT/Macdonald plan is an auto-
destructive means to this admirable end. Its inspiration is a blend of self-pity
and delusion.

Many journalists now believe that an incubus called the “burden of
proof ” has been laid on them, asymmetrically, by the British courts.
Allegedly a presumption exists that if a reporter is sued for libel, he or she is
guilty until proven innocent. Such sad victims lack even the common
criminal’s prerogative – to be assumed innocent until the State proves
otherwise, and under strict conditions. No wonder the land is sick, that
robber-barons despoil the public, and terrorist financiers can operate
virtually undisguised. The Financial Times argues, with widespread support,
that we can’t cure our society’s ills because we threaten to shoot any
messengers who might tell us what’s happening.

Mostly this vision links with one in which the U.S. is a palladium of open
discourse, troubled only by “libel tourism” – American malefactors, that is,
slinking into London to ambush paladins they fear to tackle in any place
where freedom reigns. Complainants vary on when and how this cruel
circumstance arose. Some say it’s ancient, that the Star Chamber never did
really shut down. Others see more recent evil, especially in the works of Mr
Justice Eady – the most sinister lawyer since Robespierre, sure to end under
his own guillotine if only Paul Dacre can have his way. Appraised as fantasy
this maybe lacks the grandeur of Lloyd Blankfein’s claim that Goldman Sachs
and its playmates are doing “God’s work” – but it is no less distant from
reality. To start with, it is long since sensible parallels existed, in English-
speaking law, between libel and criminal guilt.

Not-guilty option is unavailable

Libel and slander now are issues in civil litigation, which has no
presumptions, and no demand for proof beyond reasonable doubt. Such
things apply to crime because a liberal-democratic state, if worth the name,
grasps that conflict between its enforcers and the individual citizen is deeply
unequal. To make conviction of the innocent less frequent, the enforcers are
handicapped: without absolute one-way proof there’s no decision. And they
can’t use hearsay: that is, evidence about which witnesses lacks direct
personal knowledge. Libel, a civil matter, is quite otherwise. It is a quarrel
between individuals, in which the State has no interest beyond providing a
neutral court to decide the matter. (Yes, individuals vary in type and power;
that’s an issue to discuss elsewhere.) But if the parties won’t settle, the court
must decide. The not-guilty option isn’t available (though the issues may be
dismissed if clearly trivial.)

Such civil decision is not made beyond reasonable doubt, but on the
balance of probabilities. And the court must start without presumptions
either way. Once, judges seemed to presume evil in any newspaper a copper
sued for libel, but lately the boys in blue have rather mislaid their halo effect.
Distinct from criminal prosecution, British civil courts can use hearsay
evidence to test the probabilities. And can give defendants extensive powers
of disclosure against plaintiffs. Much of the evidence that sank David
Irving’s attempt to show that the Holocaust probably didn’t happen – well
anyway, not much – was, in the fearful nature of the thing, hearsay. Disclosure
finished him off, because it led to his nauseating personal diary being read out
in court.

Strictly, the court can order disclosure against either side, but in libel it is
chiefly a defendant’s weapon. The media side will have – should have –
exhibited its essential knowledge in the allegedly unlawful publication.
Plaintiffs typically dread disclosure, put much effort into obstructing it, and
often bolt if unsuccessful. Having to show that serious allegations are
probably true (rather than probably false) can’t, in a democracy, be called
denial of free speech. There should not be freedom to lie.

Sadly the United States, which rarely grasps democratic principle quite
so firmly as orthodox imaginations fancy, has decided that in public
discourse, untruth should have equal rights with truth. There are things to
admire in U.S. law, but the (increasingly) broad usage of Sullivan v The New
York Times – the Supreme Court case that established the actual malice
standard which has to be met before press reports about public officials can
be considered defamatory – isn’t one of them. Its effect is that a public figure
– say, a doctor offering women the right to choose – can’t get libel judgment
against someone calling him a murderer without showing that the idiot does
so maliciously. The malice might seem obvious, but it can be rendered
innocent if treated as confusion – something like the “invincible ignorance”
which Catholic theologians devised so their God would not have the
embarrassing obligation to send all Protestants to hell. Sullivan’s ill-effects
are easier to see if we understand how defamation principles should work.
Pedestrian lawyers don’t like it – because there’s easy money in devising
fudges – but the efficient weapon for journalists fighting a libel suit is exact
clarity of expression.

The typical plaintiff is a con-man (con-corporation, perhaps) deploying
basic shtick: confusion, illusion and uncertainty, blended to generate doubt.
This, for obvious reasons, can be very effective in criminal defence, and it will
serve libel plaintiffs where defendants hesitate to tackle intricacies head-on.
It was a very crafty lawyer who once advised my colleagues and me: “This
business is appalling and incomprehensible. The only account the jury are
likely to understand will be yours – and if you make sure they do you will
win”. William Blake said it first: “The truth was never stated so as to be
understood, and not believed.”

Malice is wrong intent. How do you show that a man knew what he was
doing when he called an honest doctor a killer or said a heroic veteran faked
his medals to win Presidential votes? That it’s untrue is irrelevant: he is not
malicious if he is confused, and for the kind of redneck jihadi usually put up
for these missions confusion is practically identical with breathing. So, far
from creating a Palladium, the Sullivan expansion has degraded America’s
public discourse enough that serious commentators such as economist and
writer Paul Krugman wonder whether the political system’s legitimacy is in
danger. British commentators who would fancy importing its principles are
mostly of the liberal left: have they noticed that it’s overwhelmingly the
barking right which systematically exploits the growing sanctity of untruth?

Journalism exists to do harm

Still, the reform they propose should largely eject the trepidation from
investigative journalism. At which point let’s return to the start: why should
journalists be afraid? Why master fear and risk their livelihoods? Because in
the world that exists, journalism exists to do harm. Put another way, to do
good to some people, investigative work must almost always damage others.
The Telegraph team which exposed Westminster expenses-fiddling did the
British public a lot of good, but brought destruction to several political
careers, not all quite worthless. Perhaps Robert Maxwell, whom Tom Bower
and I spent years pursuing, was a wholly worthless businessman – but an
exception rather than the rule. Investigation and defamation are social
hygiene, and must be astringent to have salutary effect.

Machiavelli made the basic principles clear in his Discourses on Livy: I-VII,
On Indictments. To paraphrase: society survives only if it prevents corruption
of its virtù – in Machiavelli, of course, this stuff differs a little from simple
Christian virtue, but it requires leadership to be interwoven closely with
accountability. And thus society must provide citizens with ample facilities
for bringing accusations against one another. Furthermore, accusers who get
it right must be rewarded. But he demands harsh punishment for those
whose claims don’t stand up (I-VIII: On Calumnies). Probably the best thing,
he suggests, is heaving them off Tarpeian Rock. Defamation is only salutary
when it’s dangerous business for all concerned.

Some moderation applies in considering the fear proper to modern
investigative journalism. Since 1500, human nature has mildly improved: few
states of the democratic world haven’t followed Michigan’s (1847) abolition
of execution, and penalties now are rarely cruel and unusual. So the fears
facing the investigative reporter need not exceed career-damage and perhaps
financial loss. Mixed in with them, even if slightly contrived, may be some
show of exhilaration. (A famous old English cricketer, George Gunn, was
noted for the brio with which he played very fast bowling. When told that he
appeared to like it, Gunn said: “We none of us likes it. We don’t all of us let
on.”) If fears for yourself preclude even some aspect of elation, you should
move out to less demanding work. Nor should you stick around hoping that
the FT/Macdonald formula will be installed and make the error-count less
onerous. Because fear, especially if well controlled and well concealed, should
be welcome as an aid to precision. But if journalists become altogether
unfrightened, the situation is an extremely nasty one.

Again, investigative journalism – ignore for now the question of whether
other kinds really exist – is intended to be harmful. And only being afraid
gives you any moral justification for the practice. You at least incur some risk
roughly related to that you seek to impose on your quarry. It is not a very
sturdy justification, because a reporter’s work, if it’s genuine, consists of
pushing into the unknown, with consequences obviously impossible to
foresee. You may hope to do harm in order to do good, but the outcome can
quite readily be only harm.

If you are the kind of person who likes – who can even bear – doing work
which carries danger for others but little or none to you, because you enjoy a
presumption of innocence, then you may not care to leave investigative
journalism. But you should be forced to. You have the makings – present in
every society – of the scold, the inquisitor, the shock-jock and, in really bad
times, the secret policeman. The law should not be changed to encourage
you, but calculated to marginalise you as far as possible.

Clearly, I think that the proposed libel reforms would encourage growth
of some nasty problems. The Financial Times says that journalism has not been
very good lately at exposing disasters before they overwhelm us. True, but
it’s little to do with libel. Journalism’s chief recent debacles are: failing to
discredit the Bush/Blair WMD concoction; failing to reveal that the financial
system had been hijacked by greedy intellectual derelicts; failing to offer the
concerned public any navigable path through the (admittedly) daunting
complexities of climate science. These resulted from moral and intellectual
failures quite independent of Britain’s laws of defamation.

Lack of moral fibre caused the WMD debacle, following the old, sinister
pattern when ministers claim to act on secret intelligence. Journalists quite
smart enough to see when spooks are telling government what it’s
determined to hear can’t quell irrational fears of the government (somehow)
knowing something. Or, deadlier still, having the facility to cobble-up some
post-hoc “evidence”. The CIA and MI6 scrabbled the desert bare, while
journalists with some, but too few, brave exceptions, chose to wait and see.

Nobody ready to bet editorial credibility on calling the bluff would have
been sued for libel. It’s impractical for governments and minions-in-office to
go to court as it involves disclosures they cannot face. (Watergate turned out
as it did because Kay Graham was ready to bet her ownership of The
Washington Post, but the risk she ran concerned investment law, not
defamation.)

The notion of modern finance being run by brains not far inferior to
Newton and Einstein was equally a concoction. It wasn’t defamation law
which stopped journalists reporting the real character of the sector’s actual
commitment to mathematical science – viz, negligible. They simply hadn’t
discovered it, for lack of the necessary intellectual preparation. (Nor does
libel law have much to do with unwillingness in the business press to be
party-poopers in bubble-time.)

Climate-change is slightly different, as it’s a field rich in litigious
charlatans. It would be good to see some of the ranker hides tanned and hung
on walls. But it’s unnecessary to defame denialists: as The Guardian’s Bad
Science doctor Ben Goldacre suggests, their antics are self-defamatory if
anyone has some serious understanding of the way modern science works.
The problem is that journalism as a whole spends insufficient time
developing that knowledge and too much on insubstantial doomsday
scenarios. Making it easier for nervous people to publish accusations isn’t
going to change any of that. Lawsuit economics still give
excessive advantage to wealth and power. Introducing no-win-no-fee
litigation has reduced that old abuse – and brought some fresh ones into play.
Let’s reform them. But the law itself isn’t broke. Don’t fix it.

Bruce Page was a founder of the Insight team at the pre-Murdoch Sunday Times. He is writing a long and troublesome book about risk and complexity.