Libel law is an ass

Let’s abolish it and nurture scepticism instead, says Felipe Fernández-Armesto

January 14, 2010

This year will be another disastrous one for British education. The Government is incapable of understanding that true learning transcends economic short-termism. Vocational training, commercial performance, meretricious celebrity and social conformism will continue to crowd educational values out of the Government’s list of priorities. Universities expect more barbarous and barbarising cuts, squandered opportunities and ignorant interference.

The one bright spot with which optimists in British education console themselves is the promised reform of the libel laws. I recommend pessimism, which usually is the only preventive for disenchantment. Politicians tend to love libel laws, which guarantee them protection against their own crimes, inanities and moral transgressions. The moguls who fund and fawn on power will help frustrate real reform: they need to keep their misdeeds secret while making fortunes out of their own falsehoods. Even the libel-law optimists, if they are realistic, hope for relatively little: restrictions on libel tourism and the restoration of the public-interest defence. These are vital reforms, but even if we get them, the result will be to return us to the barely tolerable normalcy of a few years ago. We will still have no way of denouncing politicians’ propaganda, corporations’ lies, celebs’ excesses or pseudo-scientists’ snake-oil without inviting litigation.

Even if we were to get all the measures that PEN and Index on Censorship have advocated, and for which scholars and scientists have petitioned, the reforms would not go far enough. The only good libel law is a dead one. Libel laws are iniquitous because they impede freedom. They are fundamentally anti-educational, not only because they inhibit debate but also because they take responsibility for critical reading away from the public and give it over to the courts. I want a world in which evidence alone makes stories credible - not the rumour-mongers’ willingness to risk a lawsuit.

Defamation is damaging only if patrons, public, clients, employers, co-workers or friends believe it. I have been accused in print or online of many improprieties, including anti-Semitism, lawless behaviour and taking bribes from right-wing organisations. I have never thought of suing, partly because I respect idiots’ right to drivel, and partly because no one with any critical acumen or relevant knowledge could believe such nonsense. No one who matters to me would believe it, as I am openly and obviously philo-Semitic and law-abiding (at least in democratic countries). As readers know, radical tendencies tug at my political eclecticism - and as for those right-wing organisations, chance would be a fine thing. Alas, no one has ever paid me except for honest work.

Of course, there are less obvious instances in which libels can damage vulnerable people. In cases involving businesses with many customers, or public personalities or organisations who need to command large numbers of followers to realise their ideals or sustain their livelihoods, malicious rumours might undermine the innocent by convincing the ill informed. The only reason, however, for the credulity of the deluded in such cases arises directly from the libel laws themselves. A vicar, say, is falsely accused of paedophilia, or a council official of corruption, or an academic of plagiarism. “If it weren’t true, they’d sue,” the deluded say. The libel laws send up smoke signals from unignited fires, crediting the defamers, unless and until the aggrieved go to the trouble, peril and cost of challenging them.

If there were no defamation laws, there would be no reason to believe scuttlebutt and innuendo. Every sensible member of the public would treat malicious inventions with the contempt they deserve. Well-documented accusations in reputable media would carry proportionate weight. Prurience and persiflage in blogs and rags would perish for want of a marketplace, or resume their rightful place as scurrilous but ultimately innocuous entertainments. The rise of the blog and undisciplined websites, it is often said, makes libel law more necessary. On the contrary, it makes abolition all the more urgent, in order to deprive such sources of the credibility they have gained from submission to the judgment of the courts.

Sometimes libel laws, in spite of themselves, have done indirect good. By initiating the notorious McLibel case against environmentalists’ excoriation of socially and environmentally damaging hamburgers, McDonald’s forced itself into revising its image and improving its own practices. The case Lord Aldington brought against Nikolai Tolstoy for tainting him with war crimes caused misery to both litigants, but drew attention to the shameful way British authorities treated the “victims of Yalta”. Suing Simon Singh for his scrutiny of chiropractic claims, the British Chiropractic Association has helped us all by stimulating demand for reform of the law. These examples show that libel is a trap for hubris. Ever since Oscar Wilde brought disaster on himself by suing the Marquess of Queensberry for accusing him of sodomy, litigants have opened self-inflicted wounds.

These advantages, such as they are, hardly outweigh the iniquities. Libel laws are silly as well as evil, because they are self-defeating. The best way to protect the victims of defamation would be to abolish libel laws altogether, and thereby reinspire readers with healthy scepticism. The best defence against libel is not law but education. Critically minded readers can be trusted to judge the evidence for themselves.

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