November 15, 2004

Galloway libel

Posted by Daniel

Lots of fun and games coming out of the Telegraph / George Galloway libel trial, so I thought I might as well dig up the second ever post I did on CT, handicapping the race a bit. I’m not sure that I’ve got much to add to that post, to be honest; even the links seem to still be alive. The Telegraph is going for a defence of qualified privilege, and Galloway isn’t trying to suggest that the documents were fakes, so it is likely to all turn on the question of whether the Telegraph’s journalism at the time was “responsible”. In which case, my guess is that much will depend on the judge’s interpretation of a Telegraph editorial at the time which contained the phrase “there is a word for taking money from a foreign power … treason”. Charles Moore’s trash-talking of Galloway during the period when he thought GG wasn’t going to sue might also come into the equation. My guess is that Galloway wins, but wins small as he is in large part the author of his own misfortune by cuddling up to Saddam so much. A bit disappointing for free speech fans, because it maintains the irritating state of affairs arising from Times vs Reynolds; while the House of Lords has hung out the tantalising prospect of a generalised public interest defence, nobody has actually won a case on one yet.

Posted on November 15, 2004 11:22 PM UTC
Comments

The joys of life with a really “living” constitution. And liberals think it’s a good idea?

Posted by Brett Bellmore · November 15, 2004 11:26 PM

Conservatives, by contrast, prefer a constitution that’s dead . . .

Posted by rea · November 15, 2004 11:37 PM

What’s deader; A Constitution that rarely changes, but IS in force, or one which has no effect on the government, because any time the government wants to do something contrary to it, it’s “reinterpreted”?

Posted by Brett Bellmore · November 15, 2004 11:44 PM

Brett, do you know a lot about the British Constitution? If that is what you are characterising you are getting it seriously wrong. I suggest, by the way, that you read Jeremy Waldron’s very powerful case against judicial review in The Dignity of Legislation; he presents a very powerful case against the US way of doing things as the optimal feasible way of protecting actual rights.

Posted by harry · November 16, 2004 12:57 AM

“Dignity of Legislation”? That title would cause outright laughter amongst anyone in a red state. My sister spent a summer at Oxford studying English law and came back with not much good to say about the lack of a written constitution, but plenty of new found respect for the US constitution.

Not having any stumbling blocks in the way of what passes for the flavor of the week in parliment certainly sounds like a recipe for trouble. Legislating when fast food ads can run? I guess English parliment is now helping the English eat their food because they are so helpless?

Posted by jet · November 16, 2004 01:08 AM

Not of any particular worth, but I have a friend with a PhD in international law from Oxford and while he will never engage in a academic debate with me because he feels he must teach me 4 semester’s of information before anything intelligent can be discussed, he did comment that the US is very lucky to have their system and the UK system was more…..”pliable”.

Posted by jet · November 16, 2004 01:19 AM

brett bellmore wrote, What’s deader; A Constitution that rarely changes, but IS in force, or one which has no effect on the government, because any time the government wants to do something contrary to it, it’s “reinterpreted”?

I take it you think Brown v. Board of Education was wrongly decided?

Posted by liberal · November 16, 2004 01:43 AM

“What’s deader”

an abortion doctor killed by someone who never had a say in whether abortion should be legalised

or an abortion doctor and someone who did have a democratic stake in a question of fundametal human rights

Posted by Giles · November 16, 2004 01:55 AM

Yeah, this discussion is really going to go somewhere valuable. Too bad, I’d be interested in the comparative legal study.

Posted by washerdreyer · November 16, 2004 02:08 AM

I meant comment thread, the post is interesting.

Posted by washerdreyer · November 16, 2004 02:22 AM

It would be intresting to see a compare and contrast of libel law in the UK and the US. It was my understanding that even with the 1st amendment, truth wasn’t an ultimate defense in a libel case until relatively recently in the US.

Posted by jet · November 16, 2004 02:32 AM

Hm….liberals defending democracy against judicial usurpation, and conservatives ridiculing them for it….I guess I have to take back (partially) what I said here last week—it looks like conservatives believe they have the upper hand on some fronts in the culture wars, after all.

(Of course, I’ve found Americans in general, despite their history and reputation, to exhibit considerable casual distaste for democracy. Whenever I comment about how bizarre I find it that nine people in black bathrobes effectively rule their country, I’m invariably met with disdainful remarks about the “tyranny of the majority”, “a republic, not a democracy”, and so on. It makes one wonder: if they don’t even care to defend it here, where “We the people” is the country’s whole raison d’etre, then who on earth will?)

Posted by Dan Simon · November 16, 2004 02:35 AM

Like Dan, I’ve always found “a republic, not a democracy” strange. If this is OK,what’s wrong with “a people’s republic, not a democracy”? Admittedly, some consistent isolationists would say both, but they are a minority.

Posted by John Quiggin · November 16, 2004 02:54 AM

“Like Dan, I’ve always found “a republic, not a democracy” strange. If this is OK,what’s wrong with “a people’s republic, not a democracy”?”

You aren’t serious right? I’m pretty sure you know the difference between a republic and the method of government which hides under the label “People’s Repbulic”.

I’ll assume that my sarcasm detector is off tonight.

As for US libel vs. UK libel. I suspect that both are just a little off (in opposite directions) from what I would consider ideal. NYT Times v. Sullivan goes a bit too much leeway to publishing organizations. Reckless disregard for the truth is incredibly difficult to prove, so media outlets get a pass almost all the time. On the other hand, I think that putting the burden of proof almost entirely on the publishing company is too much. (And if that is an incorrect summary of English law I’m sure someone will say so.) Frankly, as far as I’m concerned Galloway is libel-proof. You have to have a good reputation in order for libel to damage it.

Posted by Sebastian Holsclaw · November 16, 2004 05:40 AM

As for 9 judges ruling the country, technically it is 5 judges. And I think the system would work much better if the tool of judicial impeachment had not fallen into disuse. (And no, impeaching a judge for repeatedly making extra-constitutional decisions would not be a threat to the Constitution.)

Posted by Sebastian Holsclaw · November 16, 2004 05:44 AM

What I find odd is the fetishism of the US constitution by conservatives poften coupled to a distinct lack of respect for the practical implications of this constitution and the values it represent.

Posted by Martin Wisse · November 16, 2004 09:09 AM

Speaking as a British liberal/leftist, I’m all in favour of a written constitution.

But anyway, this case is far more interesting as a test of the Reynolds defence than in its specifics. Britain really needs a reliable qualified privilege defence to fix its absurdly biased libel laws. As we saw in the 90s with Aitken and Hamilton, politicians are more than willing to use libel in an attempt to suppress investigative journalism. That’s not to say they have no rights, and I think the US libel law goes too far the other way, but public interest journalism conducted responsibly and in good faith should not be punished.

[Incidentally, I’m not saying the Telegraph’s case necessarily fits that description.]

Posted by Ginger Yellow · November 16, 2004 12:18 PM

Speaking as a British liberal/leftist, I’m all in favour of a written constitution.

But anyway, this case is far more interesting as a test of the Reynolds defence than in its specifics. Britain really needs a reliable qualified privilege defence to fix its absurdly biased libel laws. As we saw in the 90s with Aitken and Hamilton, politicians are more than willing to use libel in an attempt to suppress investigative journalism. That’s not to say they have no rights, and I think the US libel law goes too far the other way, but public interest journalism conducted responsibly and in good faith should not be punished.

[Incidentally, I’m not saying the Telegraph’s case necessarily fits that description.]

Posted by Ginger Yellow · November 16, 2004 12:19 PM

I’m pretty sure you know the difference between a republic and the method of government which hides under the label “People’s Repbulic”

Any government, including any People’s Repbulic, has to have a certain degree of consent of the governed, otherwise it can’t function.

We have a short and not necessarily conclusive experiment that suggests that a model with a short vague pamphlet called ‘constitution’ interpreted by 9 wise people may work OK and an even shorter and even less conclusive experiment that suggest that a model with 15 wise men devising a ‘party line’ may fail in some cases. Big deal.

Posted by abb1 · November 16, 2004 02:14 PM

surely the most distinctive difference with British libel law is that its the only (just about) civil matter that has juries.

But in this case both sides hav agreed to dispense with a jury - is that because they both see the public now as implacably partisan?

A bit like how some people see the Supreme Court.

Posted by Giles · November 16, 2004 02:45 PM

surely the most distinctive difference with British libel law is that its the only (just about) civil matter that has juries.

But in this case both sides hav agreed to dispense with a jury - is that because they both see the public now as implacably partisan?

A bit like how some people see the Supreme Court.

Posted by Giles · November 16, 2004 02:46 PM

I didn’t realise they’ve waived a jury. That’s very interesting. Galloway’s had such terrible press in this country (much of it justified, admittedly) that it probably would be difficult for him to get a fair trial with a jury. I’m surprised the Telegraph agreed. Maybe they think a judge is more likely to accept a Reynolds defence than a jury.

Posted by Ginger Yellow · November 16, 2004 03:08 PM

“Any government, including any People’s Repbulic, has to have a certain degree of consent of the governed, otherwise it can’t function.”

Just because you don’t attack the man menacing you with a nail studded club doesn’t mean you’ve consented to be mugged. All governments such as the ‘People’s Republic’ need is resignation, not consent.

Posted by Brett Bellmore · November 16, 2004 03:08 PM

The Telegraph most likely asked to get rid of a jury because they tend to make trials last longer and cost more. Galloway probably agreed for the same reason.

Posted by dsquared · November 16, 2004 04:23 PM

Brett, look, for example: a man menacing me with a nail studded club asks me for a significant part of my income, of which significant part will go to finance what I think is a criminal war (luckily I live abroad and have a large deduction, so it doesn’t really happen).

And I consent (or accept, if you prefer).

But if the guy with the club also told me to suck his dick, or, say, tried to conscript my daughter and send her to fight this war, then I would probably stop accepting and try to do something about it.

And at that point, if I am a typical enough person, - and it doesn’t have to be a majority - if, say, 20% or even 10% stop consenting/accepting - then the system will collapse.

That’s all there is to it. Almost happened 35 years ago in the US.

Posted by abb1 · November 16, 2004 05:54 PM

“because they tend to make trials last longer and cost more”

Which sugguests that both sides expect a victory to result in at most nominal damages - since then both sides have an interest in minimizing costs?

Posted by Giles · November 16, 2004 06:56 PM

On the substance of the case, I always found the provenance of the documents totally unbelievable. A reporter turns up at a looted, burned-out, building in a foreign country and happens on the one document out of millions that would make a front-page scoop and embarrass one of his paper’s political opponents into the bargain ? Pull the other one!

Posted by John Quiggin · November 17, 2004 11:00 PM

But that’s irrelevant since both sides have accepted that the Telegraph didn’t forge the documents. All the Reynolds defence means is that if the Telegraph was responsible and if the story was important (which it clearly was) then it isn’t acionable. Galloway has to prove that the paper didn’t act in a responsible manner, and that is damn hard to prove. He’ll lose, and it’s extraordinary that, once the provenance of the documents was accepted, he decided to sue at all

Posted by Tim · November 19, 2004 10:33 AM
Followups

This discussion has been closed. Thanks to everyone who contributed.