Galloway versus Telegraph: Runners & Riders

I’m surprised this one didn’t get all that much play in the weblog world; Gorgeous George finally filed suit the week before last against the Telegraph. There was a lot of suspicion going round earlier that he wasn’t going to; Telegraph editor Charles Moore has certainly been talking a bit of smack to this effect. My guess is that what has happened is that Galloway has reached a point where he is reasonably confident that he will be able to finance the Telegraph suit out of the proceeds of a settlement with the Christian Science Monitor. I’m pretty sure that the CSM will settle; they’ve been caught bang to rights, and their apology won’t count all that much since they made it after Galloway sued them. Soon we’ll find out what kind of barrister GG’s retained, and shortly after that we’ll find out if the Telegraph is really as confident as they appear, or whether they’ve been bluffing a pair of deuces, hoping that with his charity under investigation and the Arabic contributors who’ve supported his lifestyle over the last few years perhaps backing off a little, he wouldn’t be able to afford the price of a ticket. If the Telegraph ends up settling, though, we will have been deprived of what could potentially have been a wonderfully entertaining trial.

As you might guess from the above, I’m a libel fan, even perhaps a “buff”. I love high-profile politicals libel trials; they’re usually more intellectually challenging than showbiz ones, and they usually end up establishing some important precedent which helps expand the frontiers of free speech. Furthermore, there’s always the chance that somebody will perjure themselves and end up in clink (Alan Rusbridger of the Guardian should be heartily congratulated for having inaugurated the British newspaper tradition of celebrating a won libel case by passing over your files to the boys in blue; normally I don’t approve of snitching, but it has certainly helped to restrict the overuse of the libel courts by celebrities and sportsmen). To help try and share my enthusiasm with others, here’s a sort of “pre-season guide” to the form, some of the background and some things to look out for to enchance your armchair libel enjoyment.

There are five main defences against a libel action under English law; absolute and qualified privilege, truth, fair comment and innocent dissemination. There are also a couple of rarer ones; “vulgar abuse” isn’t libel, and you can’t libel someone who is already so publicly disgaced that he has no reputation worth protecting, but the big five are the only ones that you’d expect to see seriously advanced in a court of law. Absolute privilege and innocent dissemination clearly couldn’t apply to the Telegraph articles, and I very much doubt that anyone would bother trying to claim that they were purely comment, so we’re basically down to two possibilities.

Truth

To be honest, I think that the Telegraph is on a sticky wicket with this one, and I very much doubt that they will try to use it. They are probably on strong ground with respect to the authenticity of their documents; the experts who knocked down the CSM papers appear to have said that the Telegraph ones have all the key characteristics of official Iraqi documents, but that isn’t likely to be the matter of Galloway’s complaint. The point is that, in all likelihood, the Telegraph would have to prove that the actual allegations were true and that Galloway actually did take the money, and the burden of proof is all on them.

(By the way, it is often regarded to be a terrible injustice that the burden of proof is on the defendant in libel trials. This isn’t the case. The burden of proof is on you if you decide to use truth as your defence. As with any other defence, you have to prove that it’s valid to use it, or it isn’t a defence at all. If you’re making a statement that is potentially defamatory, you jolly well ought to be able to prove it beyond reasonable doubt.)
Proving that Galloway took the cash is going to be next to impossible. All he has to do is stick to his story; that he had no knowledge of the documents and never met the guy who wrote them, and unless he does an Aitken (embellishes an otherwise winnable libel case with an unnecessary but provably false statement made under oath), he’s in the clear. The Telegraph hasn’t proved that he took the money (only that some Iraqi documents say he did), and if it’s found that they claimed that he did, then they’ve libelled him.

Of course, this turns on the question of how the court interprets the Telegraph articles. A modified version of the defence involves a hybrid of truth and fair comment; establishing that the assertion that the documents were genuine (truth) and that everything else the Telegraph said was fair comment on the fact that the documents said what they said. It’s an attractive defence, but my worry about it is that something of the sort was tried by the Guardian in the Jonathan Aitken libel case and it didn’t work. There, Mr Justice Popplewell found that the Guardian had accused Aitken of procuring prostitutes for Arab businessmen and that they couldn’t hide behind the defence that they were only reporting that people had said things to them. As I say above, if Aitken had stuck to suing them on this specific claim, he would almost certainly have won, but unfortunately the need to clear his name for his political career meant that he had to also sue them on a number of other matters, which led him into the perjury. The Telegraph’s lawyers will be aware of the precedent, and it looks to me as if they have attempted to ensure that the Telegraph stories on the Iraqi documents are a bit more tightly worded than the Guardian’s stories on Aitken, but I’m not sure they’d be so massively confident that the lawyering has been watertight as to rely on it in court. In general, the British courts have been of the opinion that if you print it, you own it.

Qualified privilege

More likely, according to the blatts I read, is that the Telegraph will claim a defence of qualified privilege. Privileged statements are not libellous even if they are both false and defamatory. The difference between absolute and qualified privilege is that the small class of statements covered by absolute privilege (basically, testimony in courts and proceedings of the Houses of Parliament) cannot be libellous in any circumstance, while statements covered by qualified privilege are not libellous so long as they were not made maliciously. The idea is that the doctrine of qualified privilege is that there are some kinds of statement which ought to be held to a looser standard than others. For example, there is a qualified privilege for people defending themselves against an attack (a precedent established by the McLibel trial). On the face of it, the Telegraph might think about wanting to sue Galloway for accusing them of printing forged documents (a claim he has stopped making), but I doubt they will bother to do so as this is the sort of remark that would be covered by qualified privilege. There’s a decent summary of the relevant law available here

There are all sorts of ways in which a defence of qualified privilege might be available, but the interesting one is the one available under Section 15 of the Defamation Act 1996, which allow qualified privilege for “material that is of public concern and for the public benefit”. The UK newspaper industry has been all over this one for years, as it looks as if there might be enough of a loophole there that the section could be stretched into a generalised public interest defence of the sort which is available to (though scandalously rarely used by) the American press. The case of Reynolds vs. Times Newspapers in 1999¹ brought us a step closer with this judgement, which might be enough to work with, if the Telegraph can show that publishing the evidence about George Galloway was in the public interest and that they weren’t ludicrously unfair to him.

There are two great things about this defence (for me; from the point of view of settling the actual issue it’s amazingly frustrating; win or lose, Galloway’s name is neither cleared nor blackened). First, if the Telegraph wins, it establishes a public interest defence which can be used profitably on all sorts of future occasions. Second, because everything turns on whether there was a legitimate public interest in publishing evidence which tended to discredit a prominent spokesman against the war, there is a massive opportunity for Galloway’s lawyers to turn the whole thing into a massive judicial referendum on the war. Particularly, they can start calling all sorts of loose cannon witnesses from the fringes of the intelligence community. They’ll also be able to get loads of serving MI6 officers into the dock to testify under oath “Yes, sometimes we forge documents”. It will all be tremendous fun, and will keep the general issue of dodgy dossiers and lies about Iraq in the newspapers for at least six months. Pull up a deckchair and a copy of Halsbury’s Laws of England, sit back and enjoy. The cricket’s going to be rubbish anyway.

I don’t suppose anyone will mistake this for legal advice, by the way, but just to keep things clear, it isn’t.

¹The former Taoiseach of Ireland sued the Sunday Times for an article entitled “Goodbye Gombeen Man” which claimed he’d lied to the Dail. The jury found that he hadn’t, but awarded damages of a penny because they thought the article wasn’t malicious. The Sunday Times tried to get awarded costs because the lack of malice meant they’d have a full defence if the article was covered by qualified privilege. It went to the House of Lords, who chucked it out, but seemed to leave the door open.)