Unwritten, unheard, unconceived

The latest issue of Private Eye, in a story that’s not online, quotes a lawyer saying that ‘libel tourism’ is ‘one of the few booming industries left in Britain.’ This seems to be backed up by an article in The Bookseller which may have stumbled upon a new aspect to Britain’s libel menace.

It’s an interesting and troubling read. The issue appears to be the growth of no win, no fee libel claims. Anyone throwing a writ at a publisher runs no financial risk as, under conditional fee agreements, they won’t pay even if they lose the case. The litigant has nothing to lose. But under CFAs, lawyers can charge double fees. If publishers lose, they lose big – bad news for the whole trade but particularly for indies.

That’s if they fight. The instinct will be to settle. As the Eye also points out:

Thanks to some aggressive solicitors and timorous judges, prior restraint is now a flourishing industry. If lawyers get a whiff that one of their clients is about to be embarrassed, late in the evening they contact a duty judge – often one who has no experience of libel or media law. And the judge, reached down a phone line while eating his dinner and half-watching Coronation Street, errs on the side of caution.

The bias is towards caution, and thus towards censorship and self-censorship.

The problem is compounded by the recession – opportunistic lawyers with less and less work to do are getting into CFA libels. Publisher John Blake told the Bookseller that ‘he has been forced to hire an in-house lawyer for the first time because of the recent increase in legal claims.’

‘There are some pretty disreputable people out there and there are some who will go through new books specifically to look for potential claims.’ He added that his brief to his lawyer was ‘to fight ferociously and not settle’, but he added that he now ‘wouldn’t have the nerve’ to publish books he was previously able to do, such as the memoir 50 Dead Men Walking by secret agent Martin McGartland.

Libel coverage has focused on big powerful litigants like Roman Polanski, the British Chiropractic Association and the late and unlamented Sheikh Khalid bin Mahfouz. From this article, it seems that the process is becoming democratised: anyone can sue, anyone can censor, anyone can have a book pulped.

I’ve always thought of CFAs as a good thing – we’ve all heard the stories about frauds claiming against the council when they trip on a paving stone, but no win no fee cases are also a good way for people with no money to get justice against exploitative companies. Yet applied to defamation, CFAs clearly have the potential to become abusive.

It’s hard to disagree with Blake’s assertion that ‘[w]e all suffer because we are becoming more of a closed society and know less about what’s going on’. Jonathan Heawood, the director of English PEN adds that:

It’s very clear to us after talking to numerous publishers, authors, journalists and bloggers that CFAs have a chilling impact on free speech in this country… Many publishers would rather settle out of court for £20,000–£30,000 than risk facing a £500,000 legal bill as the result of losing a libel trial and being awarded the claimant’s costs, with the 100% uplift that some law firms impose… The real victims here are authors and readers, who are missing out on important non-fiction stories about global finance and corruption in high places as a result of these legal failings.

I don’t think fiction writers should be complacent either, given the precedents, and the apparent inability of litigants to distinguish fiction from reality, and their ability to see defamation in a grain of sand.

Perhaps writers who get sued are the lucky ones – at least they have had their say. Think of the ones whose books were pulped or turned down purely for fear of libel. Perhaps self-censorship is worse than actual censorship: words unwritten, voices unused, ideas unconceived.


‘What’s that, a broken neck? Great!’ 

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