Wednesday 27 August 2008


The shame of Salman Rushdie’s
secular fatwa

In using England’s archaic libel laws to have books pulped, the former free speech martyr puts himself in the same camp as censorious mullahs.

In a libel trial in London, novelist Salman Rushdie has successfully forced a publisher to pulp 4,000 copies of a ‘tell-all’ book, written by Rushdie’s former bodyguard, after convincing a judge that the book contained numerous lies. This is the same Salman Rushdie who became a free speech martyr 20 years ago after the Iranian Ayatollah Khomeini issued a fatwa against him over his allegedly blasphemous novel, The Satanic Verses. Yet now, Rushdie is effectively issuing a secular fatwa of his own, which has led, not to the burning of books, but to the pulping of them.

In the book about Rushdie’s decade under virtual house arrest, On Her Majesty’s Service, former metropolitan police officer turned bodyguard Ronald Evans claimed that Rushdie had sought to profit from the fatwa, was unhygienic and suicidal, and was being supervised or examined by a police psychiatrist. Rushdie insists that these are lies, and so he went to England’s notoriously censorious libel courts to have a ‘Declaration of Falsity’ issued against the author and publisher.

Rushdie insists that he is not undermining free speech. He claims there is no parallel between attempting to suppress a work of fiction, as the Iranians did with him, and stopping someone from trying to pass off lies as facts. To prove his point, he did not seek massive damages in his libel trial (in England’s libel courts thousands of pounds are frequently paid to claimants who say their reputations were harmed by false claims), but instead sought a ‘Declaration of Falsity’ to show that some material in the book was wrong. ‘Instead of just going for megabucks, you just go to court to decide what’s the truth and what’s not’, Rushdie said in a statement on the court steps. ‘I hope that maybe this device of the Declaration of Falsity is another way of pursuing these matters.’

Geoffrey Robertson QC, who represented Rushdie, pursued this theme further. He says Rushdie has pioneered ‘a new way of reconciling the right to free speech with the right to reputation. You nail the lie for all time with a court-ordered Declaration of Falsity and you receive your legal costs, but you decline to chill free speech by putting authors and publishers to an expensive trial and making them pay heavy damages.’ In short, Rushdie has discovered a ‘new way’ of doing libel, one that simply ‘establishes the truth’ but, without imposing punitive financial measures on the offending publisher or author, does not have a chilling effect on free speech.

Rushdie and Robertson are protesting too much. The idea that it is the damages in English libel trials that curtail free speech may have rang true in the 1980s, but not today. As Dominic Ponsford argues in the UK Press Gazette: ‘Back in the 1980s, the London libel courts were likened to the most exclusive casino in the world, where only the very rich could afford the huge legal bills necessary to take on newspapers in the High Court.’ Not for nothing was English libel known as ‘the rich man’s law’: the risks for claimants were high – with notoriously prohibitive legal costs – but then so were the rewards. Take the case of the now disgraced peer Jeffrey Archer, who won £500,000 in libel damages from the Daily Star over allegations that he had sex with a prostitute. (Archer was forced to pay the money back, with interest, after his conviction for perjury in 2002.)

Today, costs in libel trials are still notoriously prohibitive, which means that the ordinary man in the street has little or no access to this law, but the financial rewards, or ‘damages’, are lower than they were in the past. It is disingenuous of Rushdie and Robertson to say that in refusing to pursue exorbitant damages they are balancing ‘free speech’ with an action to protect reputation. John Blake Publishing, the publisher of On Her Majesty’s Service, will still have to pay Rushdie’s legal costs, which are thought to be around £15,000, as well as its own legal costs after having to defend itself in court. Granted, this is a lot less than the damages awarded in full-scale libel trials, but such an amount is still prohibitive to many publishers. If others follow Rushdie’s example, then small and independent publishers will probably be the hardest hit. A newspaper or large publishing house could write a cheque for £15,000 without a second thought; a small publishing company could not.

However, by far the most worrying aspect of Rushdie’s statement is the idea that the libel courts are the appropriate place to ‘decide what’s the truth and what’s not’. Whatever the changes in damages in recent years, England’s libel courts are still the playground of the rich and famous who wish to censor their critics, accusers or slanderers. This anachronistic law grew out of dissatisfaction with the old aristocratic ways of dealing with defamation through duels. And the basic principles of the law – the uncompromising support for the right to reputation over the right to speak freely – have survived most attempts at reform ever since. In 1774, Lord Mansfield stated that ‘whatever a man publishes he publishes at his peril’, a statement that can still be applied to English libel law today, which hangs over the head of every writer, editor and publisher in England, making publication a potentially perilous activity indeed.

Whether a claimant follows Rushdie’s new example or opts for the high payout route of Jeffrey Archer and others, the fact remains that English libel law is unfair and essentially censorious. Under English libel, claimants do not need to prove that what was said about them was untrue. Instead, there is an assumption that the defamatory statement is false, and the burden falls on the defendant to prove that it is true. This reversal of the burden of proof – where the defendant is pretty much viewed as guilty until he can prove his innocence – is almost unique to English libel law. It distorts natural justice, and it has an in-built presumption of censorship, where a statement is presumed to be false and thus should probably be censored or pulped.

Others have recognised how illiberal English libel law is. In 1997, the US Maryland State Appeals Court refused to recognise an English libel ruling, arguing that the principles of English libel law failed to measure up to basic human rights standards and were ‘repugnant’ to the First Amendment ideal of free speech. The idea that this ‘repugnant’ law, weighted in favour of wealthy claimants (80 per cent of whom win) and against the principle of open debate, can establish the truth – as Rushdie claims – is laughable. Did Jeffrey Archer establish the truth in his libel case against the Daily Star?

Even individuals from the Islamic world no longer issue fatwas against their slanderers, but prefer to pursue them in England’s plutocrat-friendly libel courts instead. One Saudi billionaire has sued numerous publishers and authors in London’s courts, resulting in the effective banning or pulping in the UK of various books on terrorism. It seems some individuals recognise that a ruling in England’s libel courts is far more effective than an old-fashioned religious fatwa. Now Rushdie, once the victim of a fatwa from the Islamic world, has joined this same censorious club.

It is a disgrace that someone who has suffered as a ‘free speech martyr’ should use these laws, and worse, give them a new ‘free speech-friendly’ gloss. Rushdie has great access to public debate – through the media and publishing worlds – and it is there, in the court of public opinion, that he should have put his case so that we could make up our own minds about it. A single judge in a dusty court should not be called upon to establish Truth. Rushdie’s ‘secular fatwa’ is as problematic for freedom of speech as the religious fatwa that was issued against him.

First published by spiked