Thursday 26 June 2008


No defender of liberty should use the libel laws

England’s law of defamation is the enemy of free speech. So why did the head of Liberty threaten a minister with a writ?

Last week, Shami Chakrabarti, director of the civil liberties group Liberty, sent a letter to the UK culture secretary, Andy Burnham - and copied to the prime minister, the attorney general and the London Evening Standard - in which she threatened to sue Burnham for remarks he made in Progress magazine about her sharing ‘late-night, hand-wringing, heart-melting phone calls’ with Conservative MP David Davis.

In the letter, Chakrabarti wrote: ‘I look forward to your written apology as I’m sure does Mrs Davis. If on the other hand you choose to continue down the path of innuendo and attempted character assassination, you will find that the privileged legal protection of the parliament chamber does not extend to slurs made in the wider public domain.‘

Burnham was allegedly ‘aghast’ at the suggestion that he was ‘smearing’ Chakrabarti. His spokesperson said: ‘It was a light-hearted comment about the former shadow home secretary’s political journey, by-election knockabout and nothing else.‘

The spokesperson’s assertion that Burnham had meant no offence apparently failed to allay Chakrabarti’s distress - particularly since it didn’t even come from the horse’s mouth. ‘That’s not an apology, in her view’, Chakrabarti’s spokesperson said.

‘She should grow up’, one Evening Standard reader commented in response to the paper’s ‘exclusive’ about Chakrabarti’s threatened legal action. Indeed, she should. Burnham’s comments were a snide, pathetic excuse for political argument, but Chakrabarti’s over-the-top reaction to his puerile remarks in a small-circulation magazine was infantile and attention-seeking. As Martin Ivens rightly pointed out in The Sunday Times, ‘both “victims” have lapped up the publicity’. And how many people would have heard of Burnham’s comments if Chakrabarti hadn’t made such a song and dance about them?

However, the most worrying thing about this sorry affair is the fact that the head of Liberty has no qualms about threatening to use England’s notoriously censorious libel law.

As David Pannick QC explained almost a decade ago in The Times, ‘the current state of the English law of defamation is impossible to reconcile with any developed concept of free speech….Our libel law assumes that life is lived in a gentleman’s club in which damage to reputation is one of the most serious injuries that a person can suffer.‘ London, often dubbed ‘a town named Sue’ by American journalists, has long been the libel capital of the world.

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.

Other countries at least attempt to strike a balance between the right of free speech and the right to defend one’s reputation. In the US, the landmark ruling of New York Times v Sullivan in 1964 created a public figure defence - making it very difficult for public individuals to sue for libel. To succeed in a libel case, claimants would need to show that not only were the allegations untrue but that they were made maliciously or with reckless disregard to the truth.

It was assumed that public figures should be robust enough to deal with the cut-and-thrust of public debate. Public figures like Chakrabarti have got ample recourse to the media, giving her the opportunity to rebut any allegations or insinuations without needing to go running to the law courts.

Burnham has since sent Chakrabarti a letter of ‘regret’ which seems to have been sufficiently apologetic for her liking. But she should never have threatened to use this anachronistic and censorious law in the first place.

In her letter to Burnham, Chakrabarti refers to the offending magazine in which he made his comments as ‘the ironically titled Progress‘. Perhaps we should now refer to her own organisation as ‘the ironically titled Liberty’.

First published by spiked