Speak No Evil

I note that the Attorney-General of Australia is suing the ABC and one of its journalists for libel.  It ill behoves a construction lawyer to say anything at all about the law of libel. And it might be a very bad idea indeed for anybody to say anything about the facts of the case, for fear of saying something that is itself defamatory.

But I can share an anecdote.

Many moons ago, when I was a solicitor running a construction law practice in London, one of my clients was quite seriously libelled in one of those free newspapers that was popular at the time. The allegation was, we had no doubt, politically motivated. Those writing for the newspaper had a political objection to the privatisation initiatives of central and local governments at that time, and my client was being targeted as a participant in one of those privatisation initiatives.

Obviously, I told my client that I should not act. I knew nothing about defamation law other than what I had learnt at law school. The client should go to a specialist, I said. But no. The client was insistent. The basis of the insistence was that we always won, and the client had a touching belief that if I could win in other areas, I could equally well win a defamation action.

So we issued proceedings, rather expecting the newspaper to settle, and to publish an apology. They could not and did not plead justification, since the allegation was not only untrue, but without a shred of supporting evidence other than tittle tattle from others with the same political agenda. Instead, they pleaded that they were entitled to qualified privilege as a newspaper publishing fair comment.  They relied up on some 19th-century legislation (the Law of Libel Amendment Act 1888 or something similar, as far as I recall)[1]. A week or so before trial, they were still refusing to settle.  We had, of course, engaged an experienced defamation specialist as counsel; he said that that defence might or might not succeed. My client was determined to plough on.

I was doing a bit of sailing at the time, in preparation for the Fastnet race. A good friend of mine, David Parry (sadly, no longer with us) roped me in as part of the crew for his entry, and to this it was necessary to do a number of qualifying races. Sometimes, the wind blew furiously, and we were all busy on deck. At other times, when the wind hardly blew at all, and said there was some time to think.

And so, one weekend when the wind was not blowing very much and we were out at sea, I started to think.  I tried to put myself in the shoes of whoever put this legislation together a century or so earlier. Okay, so I would want to provide some protections for newspapers. But how would I define “newspaper” for this purpose? Bobbing around in a lacklustre wind somewhere in the middle of the English Channel, I made a guess: I would define a newspaper something with a cover price. I would not want to give protection to the scandalmonger sheets which did the rounds in Victorian Britain. If this were right, this free newspaper would not be a “newspaper” for the purpose of its defence.

So, when I got back to my office on Monday morning, I rang our counsel, and put the point to him. His first reaction was something along the lines of, “Oh no.  All newspapers, including the free ones, regularly plead this defence. Nobody has ever taken this point before”.

Anyway, we looked up the Law of Libel Amendment Act 1888. Tediously, it contained the provision:

In the construction of this Act the word “newspaper” shall have the same meaning as in the Newspaper Libel and Registration Act 1881.

So we looked up the Newspaper Libel and Registration Act 1881. And hey presto, it contained the provision that:

The word ” newspaper ” shall mean any paper containing public news, intelligence, or occurrences, or any remarks or observations therein printed for sale, and published in England or Ireland periodically, or in parts or numbers at intervals not exceeding twenty-six days between the publication of any two such papers, parts, or numbers.

Accordingly, the statutory defence was not available to this defendant. Being good and kind souls, we rang the defendant’s lawyers, and pointed the provision out to them. After a short period of time, they got back to us, and said they wanted to settle. Would we negotiate on the settlement figure we had previously required? The answer to that was “no”; they would either pay the damages which we had required in full (which was a substantial but not ridiculously excessive amount), and pay our client’s costs, and print an apology, or they would go to trial.

They paid in full and printed the apology. Thereafter, my clients, and in particular the individual against whom the scurrilous and entirely untrue allegation had been made, held their heads rather higher, and went about their business quietly satisfied, with the wind in their hair.

As a side note, one of the individuals who had been spreading the story about was a young politically-motivated barrister. We told him of the outcome, and pointed out that our client had, under the Statute of Limitations, a period of six years in which to decide whether or not to also sue him personally for damages.  Our client’s decision as to whether or not to do so would depend on whether, within that period, he ever again said anything about our client which our client considered to be defamatory or derogatory. He never spoke out about our client again. Instead, he apparently learned some prudence, and went on to have a successful career in the law.

It seemed to me that the result was rather satisfactory. At any rate, for those of us who do not believe that it is in the public interest to make unsubstantiated and highly damaging allegations about people for political purposes.







[1] I may have that detail wrong. As I say, I was never a defamation specialist. But it was something like that.

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