Plaintiff beware the perils of suing for defamation  

Source: Dario Milo Full Business Day column

Posted to the web on: 17 January 2007

The law of defamation aims to protect a person’s right to an unimpaired reputation. But the history of defamation law reveals a sober warning to defamation plaintiffs: institute defamation proceedings at your peril. By litigating, the plaintiff effectively opens his life to intense public scrutiny. What may have begun as a few offending statements tucked away somewhere in a newspaper, and probably long forgotten by members of the public, will be given enhanced prominence by the media as the trial proceeds. What is worse, if the plaintiff loses his case, he may face a scathing judgment that far outweighs any harm caused by the original article. The judgment handed down last week in the case of Ronald Suresh Roberts v The Sunday Times epitomises these pitfalls.

Roberts sued the Sunday Times for its profile, The Unlikeable Mr Roberts. In the course of the judgment, which has now been extensively reported in the media, Roberts was described by the judge as “haughty and arrogant”, “vindictive and venomous” and “obsessive”, among other epithets.

Roberts has indicated that he will appeal, and the appeal court may well take a different view from that of the lower court. But the adverse findings of the judge in the Roberts case should nevertheless give pause to public figures who contemplate suing for defamation.

English law provides a number of examples of the self-destruction of public figures who claim damages for defamation, knowing what has been said about them is true.

The best known example is that of Oscar Wilde, who in 1895 launched and lost a private prosecution for libel against the Marquess of Queensbury for calling Wilde a “posing sodomite”. At the time, Wilde’s homosexuality was not public knowledge, and sodomy was a crime. The evidence led by the marquess in his defence and Wilde’s own testimony in cross-examination, established that Wilde had indeed committed sodomy. Wilde was arrested after the trial he had initiated, put on trial himself, and sentenced to two years in jail.

One would have thought that Wilde’s experience would have provided an eternal lesson for public figures in England, about the importance of being honest. But this lesson has been overlooked by a number of politicians and celebrities who have authored their own misfortune by launching litigation for defamation. Both Conservative Party politician Jonathan Aitken and the novelist and politician Jeffrey Archer were sent to prison for having committed perjury in the course of their defamation trials.

Aitken, a member of John Major’s cabinet, had been accused by the Guardian newspaper of being in the pay of the Saudi Arabians. In Aitken’s ill-fated speech after the article was published, he promised to “cut out the cancer of bent and twisted journalism … with the simple sword of truth”

In the trial he initiated for libel, he was caught out under oath, and forced to abandon his case and pay the majority of the Guardian’s legal costs. The newspaper’s headline after the collapse of Aitken’s trial read, “He lied and lied and lied”, and the editor observed that Aitken had “impaled himself on the simple sword of truth”.

Unlike Aitken, Archer’s lies caught up with him only many years after his libel trial. He had succeeded in 1987 in obtaining £500000 in damages from newspapers that had reported he had paid a prostitute to leave the country. More than a decade later, a former friend produced evidence that he had concocted a false alibi in his libel case. Archer was convicted of perjury and sentenced to four years in jail, in addition to being compelled to pay back the damages he had received to the newspapers, with interest.

More recently, David Irving, the British historian, sued an American professor and Penguin for libel in respect of the book Denying the Holocaust. Irving took objection to the allegations in the book that he had deliberately falsified history in denying the Holocaust. The defence pleaded was that of truth.

In the court’s 333-page judgment in favour of the publishers, it scrutinised Irving’s character, books, speeches and other literature in great detail. The court did not mince its words: no objective, fair-minded historian would have serious cause to doubt that there were gas chambers at Auschwitz and that they were operated to kill hundreds of thousands of Jews. Irving’s denial of the Holocaust revealed him to be “anti-Semitic” and a “racist”; he was a “right-wing pro-Nazi polemicist” who had deliberately distorted and manipulated historical evidence. The harm to his reputation had been self-inflicted.

Even when a controversial plaintiff wins a defamation trial, the victory may be a costly one. Bruce Grobbelaar, the former Liverpool goalkeeper and Zimbabwean international, technically won his libel case against The Sun for claiming that he had engaged in match-fixing. But the House of Lords reduced the damages that the star-struck jury had awarded Grobbelaar from £85000 to the derisory sum of £1, with one judge commenting that “to award him anything more would be an affront to sport, public justice and public policy”.

The question that arises is what motivates a plaintiff who must know (in the absence of self-denial) that what has been published about him is true, to turn to the courts to vindicate his reputation? The answer is probably a combination of two factors: the sense of self-importance of the plaintiff, combined with a perception that defamation law will provide the desired relief.

The reality is that our defamation law has now developed to provide a healthy balance between the rights of reputation and free speech. Provided that what is published is either true and in the public interest, fair comment, or reasonable, the media will not be forced to pay compensation to those who abuse the system, especially plaintiffs with skeletons in their closets.

On the other hand, if the media intrude into the privacy of public figures without justification, or wrongly accuse a public figure of misconduct, they will be called to account. It is right that this is so, for reputation remains an important value in our democracy.

As Cassio says in Shakespeare’s Othello: “Reputation, reputation, reputation! O, I have lost my reputation! I have lost the immortal part of myself, and what remains is bestial.” Defamation law is designed to assist those who, like Cassio, have a genuine cause for complaint. It is not a weapon for public figures to silence their critics.

Dr Milo is a part-time lecturer at Wits University and has a doctorate in defamation law from University College London. He writes in his personal capacity.