09.12.2004
Galloway and libel
The basis of the action was stories and a leader published by The Daily Telegraph on April 22 and 23 2003. Starting from documents which a Telegraph reporter claimed to have found in government offices in Baghdad, the paper accused Galloway of being in the pay of the Ba’athist regime; that the ‘Mariam Appeal’ he founded in 1998 was funded by Baghdad; and so on. A leader accused Galloway of “treason”.
Galloway from the outset argued that the documents were forgeries originating from the British or US intelligence operations. In June 2003 the US Christian Science Monitor accepted that other ‘Baghdad documents’ purportedly implicating Galloway, which they had published, were indeed forgeries.
Narrower
The judgment is narrower than it at first sight seems. Galloway’s lawyers argued that the Telegraph’s stories claimed that Galloway was personally corrupt and had personally received money from the Iraqi Ba’athist regime. They did not claim more generally that no part of the funds of the Mariam Appeal came from the regime. Indeed, on April 23 2003 Galloway in an interview with The Guardian said that it was possible that some Mariam Appeal intermediaries had received money from the Ba’athists.
The Telegraph’s lawyers, for their part, chose not to claim that the stories were true. They would have faced severe difficulties in doing so. To a considerable extent the gist of the stories was that Galloway had benefited personally from Ba’athist money via the Mariam Appeal. This was capable of ready disproof by Galloway had the Telegraph relied on the documents for substantiation.
Moreover, after the story came out, the attorney general set the Charity Commission on to investigating the Mariam Appeal. This was an abuse of power, since the appeal was openly political and had sought neither registration as a charity nor tax relief. If groups which are created as political campaigns can be ‘turned into’ charities by the state, it could be argued that the Stop the War Coalition or Respect are as ‘mainly peace movements’ also charities - peace is a charitable object in law - and then condemned for spending most of their money on political activity. The Charity Commission did decide that the Mariam Appeal was charitable in spite of its founders’ intentions - a very bad precedent. Nonetheless, the result of the investigation was that no substantive abuse of the Mariam Appeal’s funds was found (June 28 2004, http://www.charity-commission.gov.uk/investigations/inquiryreports/mariam2.asp). This finding was an effective road block against the Telegraph claiming its stories were true.
Instead, the Telegraph’s lawyers made three arguments. The first was that the story did not mean what Galloway’s lawyers said. Instead, it meant only that the Mariam Appeal and Galloway’s political activities more generally were part-funded by the Ba’athists. The judge said that on the face of the articles this argument was “quite unsustainable”.
The second argument was that the Telegraph was protected by the defence of ‘qualified privilege’, as extended by the House of Lords in Reynolds v Times (2001). ‘Qualified privilege’, in its pre-Reynolds form, covered transactions like references to support job applications, and so on. The author of the statement must have a duty to make it to the receiver and the receiver must have an interest in receiving it. In Reynolds, the House of Lords, faced with growing criticism that English libel law was inconsistent with the right of freedom of speech provided by the European Convention on Human Rights, extended this defence to cover ‘responsible’ journalism. The judge dealt with this issue at more length and concluded, in substance, that the Telegraph’s stories and leader did not qualify as ‘responsible’ journalism.
The third argument was narrower. This was that the parts of the stories and leader which were not direct factual claims were subject to another defence: that of “fair comment on a matter of public importance”. The difficulty here is that it is well established law that the factual foundation of ‘fair comment’ must either be true or be protected by one of the various ‘privilege’ defences. The ‘fair comment’ argument on its face therefore stood or fell with the privilege argument. In fact, the judge took the view that the contents of the leader made allegations of fact against Galloway and could not be defended as fair comment at all.
The net result is that the judgement is not a finding that the Telegraph’s allegations are false. In English libel law a defamatory statement is presumed to be false. The publishers of such a statement have a defence if they can show it is true. If they choose not to make the attempt, as happened here, the target - in this case Galloway - has no opportunity to prove it is false.
Alliance for Workers’ Liberty
The Alliance for Workers’ Liberty has over the past year all but associated itself with the campaign of the government and sections of the media to smear Galloway as a corrupt supporter of the Ba’athist regime. It has been careful to avoid making explicit allegations of direct corruption, like the Telegraph’s, which would expose it to a libel action. Rather, it has tended to start with Galloway’s political defence of the regime against US-British military attacks and sanctions in the 1990s, the “I salute your indefatigability” quote, and the admitted fact that the Mariam Appeal was extensively funded by the unpleasant regimes in Saudi Arabia and the United Arab Emirates. The AWL then argues that this political conduct is in itself and as such corrupt.
It is thus unsurprising that it has emphasised the narrowness of the judgment in Galloway’s case against the Telegraph. Jim Denham of the AWL has offered a paraphrase of Humbert Wolfe:
"You cannot hope to bribe or twist
The honest British Saddamist
But seeing what the man will do
Unbribed, there’s no occasion to."
In fact, Wolfe’s original is far more apposite:
"You cannot hope to bribe or twist,
Thank god! The British journalist.
But, seeing what the man will do
Unbribed, there’s no occasion to."
Sections of the press, including the Telegraph, lent themselves to a smear campaign against Galloway, alleging personal corruption. The AWL joined it: it has since spring 2003 been in full cry against Galloway, the corrupt tool of “Saddam” (ie, the Ba’ath regime), and its criticisms of the Respect project have been primarily focused on how unprincipled it is to unite with ... Galloway.
The Weekly Worker came close to joining in, in Dave Osler’s article of April 24 2003, which suggested that Galloway might be guilty. The prominence we gave Osler’s article - especially in view of the fact that this was our only coverage of the case in the issue immediately after the Telegraph’s allegations were made - was a mistake. In the next issue, however, Manny Neira correctly diagnosed that what was going on was a political witch-hunt (May 1 2003). We asked comrade Osler to submit another article for the current issue, but he was unable to do so.
In general we have insisted that we have political differences with Galloway (among other matters) over his political relations with Arab regimes and - a distinct issue - over his finances. On the latter point, we disagree with his rejection of the principle that elected representatives should receive only a worker’s wage, in favour of the view that he needs a large income in order to carry on individual political activity. These political differences do not - contrary to the Telegraph-AWL view - imply that Galloway should be treated as a political leper.
Bourgeois courts
The AWL has made play of the fact that, had the court found against Galloway, the Socialist Workers Party/Respect would have denounced the decision as expressing the class character of the judicial system as an aspect of the bourgeois state. For the SWP/Respect now to celebrate Galloway’s victory is, suggests the AWL, inconsistent (and ignores the narrow character of the decision). This is a misunderstanding of the political role of the judiciary.
The judicial system is an aspect of the bourgeois state in two senses. The first and more fundamental is that the social institution of law, trials and judicial decision-making is ultimately founded on the sanctity of private property. It is thus bourgeois - and a central aspect of the bourgeois character of the state - as against the interests of the proletariat. But this sense is consistent with the decision in Galloway v Telegraph being a genuine victory for Galloway, which vindicates his right to an untarnished reputation. There are problems, to which we will return later.
The second sense is more relevant to the present issue. This is that judges (a) depend on the coercive power of the state (police, bailiffs, etc) to support their decisions; (b) are state employees; (c) are part of an ‘establishment’ political culture which overlaps with the top levels of the state bureaucracy and the corporate elite; (d) are selected from successful barristers - ie, those who have made lots of money by self-employment and therefore tend to be Conservative; and (e) have come from a profession which is unusually white, male and upper-middle class. As a result, where judges have choices about cases which are politically significant, they are likely to choose the result which is most consistent with the interests of the employers and/or of the state, as opposed to those of the workers’ movement. The argument is made at length in JAG Griffiths’ The politics of the judiciary (fifth edition, 1997).
And judges have a lot of choices! Even where ‘the law’ is an act of parliament, it is necessary to interpret what the words mean, and judges can give strange meanings to words. Where - as in libel - it is mostly ‘common law’, they are interpreting the words and decisions of other judges. Even cases which look obvious to the lay person can be made obscure and disputable by lawyers, thus opening the way for judges to reach the result which seems expedient on the basis of their biases.
There is, however, a necessary limit on this. The judicial decision is given political authority by appearing to be a neutral application of the law. Hence, if the judicial decision - or the law - becomes obviously biased, it loses its political authority. A classic example is the big strikes against the jailing of five dockers under Heath’s industrial relations legislation in 1972. Another is the refusal of the jury to convict Clive Ponting of Official Secrets Act violations in 1985, in direct defiance of the judge’s instructions.
In the main, the judicial decision has political authority because the vast bulk of cases judges deal with are on the civil side simple debt claims (D has bought goods on credit, or borrowed money, and not paid), traffic accidents and family disputes; and on the criminal side traffic offences, theft, drunken violence and drugs matters. These usually only engage overt politics and judicial biases indirectly.
But even in cases where they are making political choices, judges need to avoid creating the impression of consistent bias. The judicial power to make political choices is thus in effect a reserve power. It is not used all the time. Timing may be crucial. Thus in Gouriet v Union of Post Office Workers (1977) the court of appeal issued an injunction against the ‘blacking’ of South African mail, without legal grounds, and with a more or less open display of bias against the union by Lord Denning. The House of Lords later reversed the decision; but by then the momentum for action was gone. Similarly, a good many biased decisions were made against striking miners in 1984-85; several of them were reversed after the strike had been defeated, thereby restoring, or at least attempting to restore, the perceived neutrality of the courts.
Coming back to Galloway v Telegraph, the judge could have acted on the basis of political bias - in which case it is to be presumed, drawing on our general knowledge of judicial prejudices, that he would have found a way to come out for the Telegraph. Or he could have acted - as he seems to have - as though the case was politically neutral. The AWL’s objection to the SWP/Respect’s celebration of the result as doublethink is therefore misconceived.
Libel’s history
In Telnikoff v Matusevich (1997) US courts - first in Maryland and then at the federal level - refused to enforce an English libel judgment on the ground that English libel law was inconsistent with “applicable international human rights standards”, with US public policy and with the first amendment to the US constitution. The ‘human rights’ and ‘public policy’ language is of secondary importance. The fundamental objection is that there is a conflict between libel law and freedom of political speech.
It is hardly surprising that there should be such a conflict, since the historical origins of the English law of libel are connected with censorship. Libel is special. There is a separate civil liability for slander - spoken words which defame the claimant - which is older than libel. It has not been much used for many years. Libel’s history is more intimately connected with political censorship.
Under the medieval Scandalum Magnatum (slander of big shots) Acts it was a crime to circulate news whereby confidence would be undermined in the government or in the peers of the realm, bishops, etc. Individual ministers, peers and bishops could sue. Out of this liability, and also borrowing ideas from the criminal law of the late Roman empire, the Court of Star Chamber in the 16th century fashioned a general crime of libel - the circulation of illegal writings. Again, individuals could sue. The Star Chamber was abolished in 1641, but statutory press censorship was introduced by Cromwell in 1655 and re-enacted after the restoration in 1662.
In 1695, however, parliament refused to renew the press censorship legislation. The government was forced to find another instrument for press censorship, and it did so with the judicial invention of libel as a ‘common law crime’. Illegal libels were those which were seditious (tending to undermine the government), blasphemous (tending to undermine the christian religion or the theology of the Anglican church, as part of the foundations of the state) obscene (from 1727, on the ground that obscenity was seditious) or defamatory. As with Scandalum Magnatum and Star Chamber libel, private claimants were allowed to sue for damages. Initially - again as with Scandalum Magnatum and Star Chamber libel - truth was no defence.
During the later 18th century, government prosecutions for libel led to a violent conflict over the role of the jury. Judges claimed that they should rule whether the publication was a libel: the jury’s job was only to decide whether it had been published. After a long political battle, Fox’s Libel Act in 1792 established that the jury was entitled to give a ‘general verdict’: that is, to decide whether the publication was illegal as well as whether the defendant published it.
Libel thus started as a crime which - almost incidentally - also gave rise to liability to pay damages. Over the 19th century governments stopped using it, and it developed towards the idea that the libel claimant had a sort of property right in his reputation. The result was a shift towards strict liability: the defendant does not have to intend to defame the claimant or, indeed, to be in any way at fault. He has invaded the plaintiff’s property right in his reputation, so must pay.
Defences
By way of mitigating the effects of strict liability, the defendant is allowed a range of defences. Truth, fair comment and qualified privilege - already referred to - are the most important, but there are others. In general the burden of proving these defences is on defendants: they have to produce the evidence; claimants do not. Truth is particularly hard to establish, since if it is alleged that the claimant has committed a criminal act, the proof must be to the criminal standard - ‘beyond reasonable doubt’.
As a result, libel pleading is a complex and highly expert art. The claimant’s lawyers will try to specify a particular set of words which will make it hard for the defendant to set up one of the defences. Thus in Galloway v Telegraph Galloway’s lawyers focused on the allegation of personal corruption, which they knew the Telegraph would find hard to defend, to the exclusion of the more general allegation of collusion with the Ba’athist regime. The defendant’s lawyers will similarly try to restate the meaning of the words, or plead defences which will let them get into evidence as much as possible to make the plaintiff look bad. Very little of this sort of manoeuvring on the pleadings takes place in ordinary civil cases (traffic accidents, and so on) in modern law.
The complexity of libel pleading has the effect that specialist libel lawyers are fantastically expensive. The damages in Galloway v Telegraph were £150,000; the total costs of the lawyers are said to be above £1 million. The winner gets the costs: if Galloway had lost, he would have been bankrupted. Legal aid is not available. The result is that a rich newspaper will in general be able to get away with deliberately smearing someone who cannot afford to sue. Conversely, a rich individual or company can usually suppress adverse comment - however true it may be - by the threat of libel action. Robert Maxwell notoriously staved off exposure of his frauds until his death by issuing libel writs.
Libel cases are supposed to be tried by jury. That is the effect of Fox’s Libel Act. In fact, the judiciary has moved increasingly to remove jury trial from libel cases. An important constitutional safeguard is undermined.
Abolish it?
Communists stand for freedom of political speech. It might seem to follow that we should favour complete abolition of the libel (and slander) laws. The best remedy for slanders and smears is exposure of their falsity by showing the truth.
The problem of political timing, however, raises questions against this approach. If someone deliberately circulates unjustified smears against their political opponents, they may radically divert the course of political debate. The fact that the smears are laboriously disproved over the next 10 years may be wholly irrelevant to the outcome. The smears against Galloway are a good example. (It is hardly surprising that the AWL joined in. Its political saint, James P Cannon, was a smear-user, and the AWL itself used smears against the CPGB in 2002 - part of a track record which went back at least to the 1980s.) The circulation of smears is thus a kind of ballot-rigging.
In a society which has not gone beyond law, then, we will need some form of legal remedy deterring the use of smears. The Germans have made the experiment with abolishing it: in the Burgerliches Gesetzbuch codification (1896), they abolished the previously existing liability for defamation. After the Nazis’ massive use of lies and smears, and the fall of the Nazi regime, they reinstated it through interpretation of constitutional rights.
Marxist support for defamation liability can be found in Lenin. Shortly after the 1917 revolution, he wrote a draft resolution for the central committee of the Bolsheviks on the issue:
“The CC establishes the principle:
l that in all squabbles and personal accusations, the person who makes such accusations without bringing specific charges before a court shall be considered a slanderer;
l that those who consider themselves affected by such accusations shall be invited to take legal action” (‘Liability for unfounded accusations’, VI Lenin CW Vol 42, Moscow 1977, pp41-42).
Dealing with smears
The question should, then, not be one of immediate total abolition of liability for defamation. It is what sort of liability for defamation communists, as extreme democrats, should favour.
The starting point has to be rejection of the idea of a property right in an unblemished reputation. Communists are, of course, in favour of going beyond the right of property, to cooperation. But (unlike the Khmer Rouge) we do not advocate immediate and general abolition of rights of property. This does not mean, however, that we should support the existence of a right of property in reputation. I can only have a (good or bad) reputation through what other people believe about me. I get that reputation largely through how I act in society. It is a ludicrous fetishism to suppose that the result is that I get a right to my reputation analogous to my right, in capitalist society, to my house or my car.
If we reject a property right to reputation, we should reject equally a general ‘right to privacy’. Democracy demands freedom of information. Many of the problems with defamation stem not from defamation liability itself, but from the fact that claimants can conceal information which shows they are guilty as charged, under cover of property rights in information. Maxwell’s use of libel writs to conceal his frauds provides a good example.
Rejecting the ‘property right’ analysis also implies rejection of the strict liability which is the sub-structure of modern English defamation law. Deliberate or reckless smear campaigns should attract liability because they are an attack on political democracy. (They are no less so where the subject matter is ostensibly about sex, as opposed to being, in Galloway’s case, openly about politics. Sex is being used in political defence of conservative-patriarchalist ideology.) In contrast, accidental defamation, or accidental transmission of a defamatory statement, should not give rise to liability. The burden of proving intention or recklessness should in general be on the claimant; but obviously it should be possible to infer intention or recklessness from background and conduct.
Similarly, in general the claimant should have the burden of proving the statement is false. This is, in fact, the only way in which a defamation trial could really vindicate the claimant’s good reputation. There are, of course, some cases where the smear is so general that disproof would be hard; but such smears, precisely because they have nothing to back them, are less likely to be believed in the first place.
These simple changes to defamation law would get rid of the pleading game, because this results from the strict liability regime. With it the monopoly privileges of the libel specialists and their exorbitant fees would go. The general problem of unequal access to lawyers would be unaffected; but this is another matter.
Fighting for reform along these lines would be perfectly consistent with the continued existence of capitalism. Several aspects of these reforms, in a deformed way, are already found in US law and others in continental European laws. The reform of defamation law is a democratic question which belongs in our minimum programme.
Back to Galloway v Telegraph
It is evident that under the reforms proposed here, Galloway would still win his claim against the Telegraph. Its coverage was pretty clearly a deliberate smear campaign: this was reflected in the judge’s high damages award. The Charity Commission investigation had already effectively cleared Galloway of the Telegraph’s main charge - that he was corrupt and personally in the pay of the Ba’athist regime.
This is precisely why the decision may be reversed on appeal. In Derbyshire CC v Times Newspapers (1993) the House of Lords ‘protected freedom of speech’ by ruling that a local authority cannot sue for libel. The problem is that what was being protected was the right of the national newspapers to carry on political smear campaigns against Labour local authorities without their lies being challenged in court. For the reasons already given, the decision is in substance a defence of media manipulation of elections - a form of ballot-rigging.
It is quite possible, then, that the court of appeal or House of Lords will reverse Justice Eady’s decision in Galloway v Telegraph and decide that the Telegraph’s April 2003 stories were after all ‘responsible journalism’ protected by the Reynolds defence. If they do so they will be loudly cheered for expanding the scope of freedom of speech. But they will not be expanding freedom of speech. They will be expanding the media barons’ right to shout everyone else down, and the media and the government’s right to run smear campaigns against political opponents.