Question and be damned

In an article headlined "ITN sued journalists to strike a blow for free speech", published in the Daily Telegraph on 17 March, Richard Tait, the editor-in-chief of ITN, argues that "attempts to ruin the reputations of honest journalists are a far greater threat to freedom of speech than the use of the law to protect those who have been libelled".

In summing up, ITN's silk Tom Shields argued that the recognition in law of the importance of reputation indicates the democratic nature of our society. So, in this case, has English libel law struck the correct balance between the right to a reputation and the right to free speech?

First, let's get some things straight. It has been suggested that there was a campaign orchestrated by LM magazine against ITN and its two journalists, Penny Marshall and Ian Williams, and that this is why ITN felt compelled to sue LM. There was no such campaign. There was an article - "The picture that fooled the world" - published in February 1997 and there was a press release. Both were critical of the two journalists concerned, and many of Ms Marshall's colleagues subsequently phoned her enquiring about the allegations. These phone calls were cited in the witness box as evidence of the distress she suffered. But all that has happened is that the journalists' actions in relation to a particular news broadcast have been criticised. As Thomas Deichmann, the author of the article, said outside the High Court: "The job of journalists is to investigate and criticise. If they cannot stand the heat without running to the High Court, they should get out of the kitchen."

Journalists, more than most, have means to rebut allegations they feel are unjust. Ian Williams and Richard Tait have had articles published since their libel victory. Could they not have done so in 1997 rather than taking legal action?

The use of libel law as a last resort may be understandable, when all other avenues have failed. As a first resort, it is inexcusable.

If LM magazine went running to the High Court whenever libelled, we would be multimillionaires by now (as would many other journalists).

Were we foolhardy to risk our future by taking the principled stance of refusing to back down and apologise? ITN has since suggested that it offered us a way out back in September 1997. But the truth is that ITN gave us no other option.

Before even having read the article, ITN instructed its solicitors to demand we apologise, destroy all copies of the magazine and pay costs and damages. ITN dragged us to court. It was prepared to waive damages; but it still demanded that we apologise in Open Court and in our magazine, as well as footing ITN's legal bill, which we could have hardly afforded then. In the end, the journalists were awarded "aggravated damages" for the additional "hurt" of being subjected to strenuous cross-examination - amounting to a total of £375,000.

Within 24 hours of the verdict a letter arrived from ITN's solicitors stating any delay in payment would entitle them to interest. But setting damages and interest aside, ITN's legal bill alone could bankrupt the magazine's publishing company, Mick Hume and myself.

As many commentators pointed out last week, the High Court is not the best place to establish the truth of allegations. The odds are overwhelmingly in favour of those who sue - therefore having a chilling effect on free speech. It is presumed that the defamatory statement is false - and the burden falls on the defendant to prove its truth - a reverse burden of proof that is almost unique to English libel law.

The defendant not only has to defend the literal meaning - but also possible interpretations or unintended meanings. It is no wonder defendants only have a one in 10 chance of success!

In Court 14 last week the jury was asked: "Have the defendants established that Penny Marshall and Ian Williams had compiled television footage which deliberately misrepresented an emaciated Bosnian Muslim, Fikret Alic, as being caged behind a barbed-wire fence at the Serbian-run Trnopolje camp on 5 August 1992 by the selective use of videotape shots of him?"

And the word "deliberately" was emphasised by the judge. The answer from the jury was "no". In other words, we were unable to prove what went on in the journalist's heads. In his summing up, the judge said: "Clearly Ian Williams and Penny Marshall and their television teams were mistaken in thinking they were not enclosed by the old barbed-wire fence, but does it matter?"

The implications of this trial for journalism are far-reaching. If journalists' reputations and feelings are more important than a free press then the message is not to question the word according to reporters. If libel is the guarantor of free speech and democracy, then journalism is the tame creature of bland inoffensiveness.