New Republic: Loving To Loathe British Libel Law
Bradford Plumer is an associate editor at The New Republic.
And just like that, the News of the World is gone. Never mind that Rupert Murdoch's racy tabloid was the best-selling and most profitable weekly in Britain, with a circulation of some 2.6 million. After the paper was caught hacking — repeatedly, and flagrantly — into the phones of everyone from the royals to a child murder victim, and once advertisers started fleeing en masse, a death sentence was the only option left
The NOTW meltdown has led to lots of focus on the bizarre, hyper-aggressive world of Britain's red-top tabloids — and, for that matter, Britain's broadsheets, which often aren't all that better behaved. While NOTW may have been particularly egregious, odds are decent other papers could have scandals lurking. (As Nick Davies, who broke open the phone-hacking story, noted in his 2009 book Flat-Earth News, more than a dozen British papers have hired private investigators to suss out confidential personal info, often through legally dubious means.) But even setting aside potential lawbreaking, many of Britain's papers were already renowned for their reckless pursuit of stories at any cost, their thin regard for accuracy, their adventures in outright libel. No wonder American journalists have been feeling awfully smug this week.
So how did the British press get so irresponsible — especially compared to its (relatively) staid and sober cousins across the Atlantic? It's especially curious when you consider that U.S. newspapers enjoy sweeping First Amendment freedoms, while the British press has to operate under some of the strictest defamation and libel laws on the planet. Is it possible that Britain's stricter press laws actually encourage bad behavior?
MEDIA ANALYSTS LIKE to note that it's tough to understand the British press, without noting the intense competition its London papers face. In the United States, for much of the twentieth century, most papers had comfortable quasi-monopolies in each city, so the sober pursuit of objectivity was a perfectly reasonable business strategy. In Britain, however, the tabloids and Fleet Street papers have long jockeyed with each other for scoops and eyeballs across the nation. (It's notable that the U.S. paper that most resembles the British tabloids is The New York Post, which is both owned by Murdoch and struggling for attention in New York City.)
As a result, the race for stories can be cutthroat. The Columbia Journalism Review recently offered up some lurid examples of the lengths to which British tabloid reporters will go: "There was the tabloid freelancer who hid in a church organ for several days, defecating in a plastic bag, to get pictures of Madonna's baby's christening; there was the time Rebekah Brooks, then a lowly reporter [and, most recently, Murdoch's British newspaper overseer], disguised herself as a cleaner to infiltrate the newsroom of a sister publication and nab a copy of their scoop." While American journalists wring their hands about ethics, British reporters don't have the time. Here's Simon Jenkins, one of the more respected British reporters around: "I was trained as a reptile lurking in the gutter whose sole job was 'to get the bloody story.'"
(As an aside, I'll note that American reporters do occasionally go to extremes, too. Back in the 1990s, a Cincinnati Enquirer reporter hacked into the voicemail system of Chiquita Brands International for a story on the company's misdeeds. The paper had to pay more than $10 million in damages and the reporter was prosecuted. Still, this isn't really comparable to systematic NOTW-style lawbreaking.)
Now, granted, not all British papers are irresponsible. The Financial Times, The Guardian, and even the Murdoch-owned Times are all respected global papers with high standards. But their circulation — the Guardian's is a scant 280,000 — is minuscule compared with tabloids like the Sun (2.7 million) and the bigger dailies like The Daily Mail (2.1 million). Far more people paid attention to, say, the News of the World's 2000 campaign to name and shame alleged pedophiles (which led to mob vigilantes and several instances of mistaken identifications) than the FT's various astute dissections of government policy. The tabloids set the tone.
That has its upsides: British papers are invariably fun to read, which is one reason why The Daily Mail is well on its way to surpassing The New York Times and becoming the most widely read English newspaper website in the world. Who can resist headlines like "MAN WITH 'FACE THAT MAKES CHILDREN CRY' SPLITS FROM WOMAN HE MET ON WEBSITE FOR THE AESTHETICALLY CHALLENGED"? And, to its credit, the British press, unafraid to be biased and rowdy, did a much better job on challenging Iraq war claims than its American counterpart. Then again, slant can easily turn into ugly demagoguery, as with this recent bit of Mail alarmism: "ONE IN FOUR PRIMARY SCHOOL PUPILS ARE FROM AN ETHNIC MINORITY." And, to take an issue I follow closely, British science reporting in the biggest papers is often horrific — from the famous 1989 Sun headline, "STRAIGHT SEX CANNOT GIVE YOU AIDS — OFFICIAL," to The Daily Mail and Times's falsehood-filled climate reporting. "My issue with a lot of these papers is that they make the evidence fit the story rather than vice versa," says Martin Moore of the London-based Media Standards Trust.
It's usually not a huge leap from there to outright libel. It's hard to stick with just a few examples from over the years, but here are a few: Back in 1987, the Sun falsely accused Elton John of paying for male prostitutes and removing the voice boxes of his guard dogs. Result: £1 million in libel damages. Then there was the time, in 2008, when the Daily Express repeatedly accused two parents of murdering their missing child. No good evidence for that one, and so came £550,000 in libel damages. Or how about, in 2009, when The Daily Mail and the Sun both accused a Tamil hunger striker of secretly chowing down on McDonald's cheeseburgers. Zero evidence for that, either, and £47,500 in libel damages. These aren't isolated cases, and, while none of them led to arrests the way the phone-hacking scandal did, they sprung from the same headlong mentality.
BUT THAT RAISES a question: Shouldn't Britain's stricter libel laws prevent outright libel and irresponsible reporting? After all, in Britain, it's much easier to win a libel suit than in the United States, not least because the burden of proof is on the defendant. Libel cases that have been dismissed elsewhere in the world often win a favorable hearing from British judges. Shouldn't this make Britain's papers leery of just making things up? It would seem so — but, instead, the opposite seems to have happened.
One reason is that the bigger papers can usually get away with it. While it's a risky proposition to smear a millionaire like Elton John, most people can't afford to sue, so the bigger papers don't have much to fear from many of the people they write about. Another point is that the papers tend not to savage each other for questionable reporting (as the phrase on Fleet Street goes, "dog doesn't eat dog"), so when, say, The Daily Mail and Sun have to pay damages for making something up about a hunger striker, not too many people will read about it. (As CJR explains, most British papers were utterly loath to touch the phone-hacking scandal, probably because NOTW wasn't the only offender — until The Guardian's scoops were too big to ignore.)
Meanwhile, in a few ways, Britain's strict libel laws can actually encourage shoddy journalism. For one, newspaper editors can threaten their critics in the blogosphere with libel suits, which keeps the carpers at bay. And here's another, more subtle angle: As Sile Lane of Sense About Science, a nonprofit group, has pointed out, the British media are rife with medical scare stories and stories touting bogus alternative therapies (the popularity of the latter is partly due to Prince Charles, who is a big fan of homeopathy) that are rarely challenged. That's partly because many journalists and scientists are loath to speak out against quacks — lest they face the same fate that met science writer Simon Singh when he wrote a newspaper column accusing (with good reason) the British Chiropractic Association of promoting "bogus treatments." Singh got sued, frivolously, for libel and had to spend two years in court defending himself. Put simply, in some cases, libel laws can prevent the press from doing its job and exposing charlatans.
Granted, there's always the possibility that, if Britain's libel laws were repealed, the British press could become even more reckless. But I have another theory. There's a classic economic study that involved parents and daycare. Many parents were late in coming to pick up their kids, so the daycare decided to start fining parents for being late. What happened next, unexpectedly, is that more parents started showing up late. It seemed as if once they could simply pay a fine for tardiness, they didn't have to worry about guilt or propriety — they were free to come late. Is it possible that, in much the same way, Britain's strict and oft-used libel laws mean that the papers can just pay the fine and see irresponsible reporting as a transactional affair?
I can't really prove that. Maybe it's a bad theory. So, by way of defense, I'll just quote what The Daily Mail once wrote in a story where they splashed the pictures of five suspects in a murder case on a front page with the headline "MURDERERS." (The men were never convicted.) To quote the Mail: "If we are wrong, let them sue us."