It feels wrong, as a journalist, to be letting outsiders into this secret, but it is really quite easy to cover things up in England. If you are determined enough it won’t cost you a penny to buy silence. Nor does it even much matter whether you live in this country: our legal system stands ready to help all-comers. It couldn’t be simpler. You hire a solicitor with a working knowledge of Britain’s libel laws to fire off a fierce letter to whichever journalist has been pestering you. It will be the opening salvo in a process which rapidly threatens to become eye-wateringly expensive.
If it’s a local paper that may well be all it takes. Most local editors will admit to having quietly shelved stories or investigations, not because they were wrong, but because the paper simply couldn’t afford the cost of fighting an action. Game over.
Other editors may sit and ponder a bit. They will reflect on how many such actions they have already had to defend — how many hundreds of hours and millions of pounds have gone down the drain. They know the next step: if they publish they can expect your solicitor to send another salvo — this time under a conditional fee arrangement, which will allow him/her to double their hourly charges if they win.
The BBC may prove a slightly harder nut to crack — though there are some spectacular recent examples of the corporation folding like a deck of cards. Some national papers will be inclined to tough it out for a bit. But the potential costs will be accumulating at a frightening rate and, in these straitened times, it takes a bold editor and a supportive owner or shareholders not to blink first, particularly with the reverse burden of proof that is the special affliction of English media organisations.
So your chances of covering up whatever it was that you wanted to keep quiet are really quite high. Should the newspaper decide to settle — a decision which may well be taken by its insurers rather than the editor — it could well end up paying your solicitor anything between £400 and £800 an hour for the duration of the skirmish.
On top of this there may well be insurance costs under what was described by Lord Justice Jackson as ‘the most bizarre and expensive system that it is possible to devise’. The longer the editor holds out, the higher the chances he/she will end up writing a cheque for six or seven figures. Not for damages: they rarely exceed £15k to £25k for most run-of-the-mill libels these days. The money all goes in costs.
Until comparatively recently it was journalists who did the moaning about all this, to widespread indifference from almost everyone else. But then other people — from large corporations and shadowy Kazakhstan businessmen to alternative health practitioners — got the message that they, too, could stifle criticism or unwanted coverage by using the same methods. NGOs, science writers and editors, mothers, critics, historians and doctors found that they also faced ruinous costs if they didn’t immediately withdraw disobliging remarks.
So that’s it: the secret of how to arrange a cover-up in London. Not that it’s a secret to anyone who has taken time to study the problem. A 2008 Oxford University study found the average defamation costs in England and Wales to be 140 times the average for the rest of Europe. Our own law lords have talked about the ‘blackmailing effect’ of solicitors using costs as a weapon to force silence. Numerous reports on our defamation laws have found that they have a chilling effect on free speech. Only last month President Obama signed into law an act protecting American citizens from British libel judgments.
And yet nothing happens. Actually, this is not quite true. Governments do like to keep newspapers editors sweet, and from time to time they will announce an inquiry to keep hopes of reform alive, if safely nestled in the long grass. The modern history of failed attempts to reform our libel laws reach right back to 1938, when the government of the day managed to neuter a bill moved by A.P. Herbert with the support of E.M. Forster. The second world war interrupted the subsequent long-grass commission, and a much weakened act eventually staggered past the finishing line in 1952.
Why on earth should MPs — public figures constantly under scrutiny — vote for Christmas? But, amazingly, we may be about to get change, following on from a private members defamation bill from the admirable Liberal Democrat peer Lord Lester, which, among other sensible reforms, proposed putting a defence of ‘responsible publication on matters of public interest’ on a statutory footing. Lester’s bill also dealt with the ridiculous state of affairs by which the repetition of information on the internet is treated so seriously. It’s a bit like the Duke of Brunswick sending his servant to the British Museum in 1849 in order to find a 17-year-old copy of the Weekly Dispatch, which he believed had libelled him.
The Lester Bill attracted a surprising amount of support in its second reading in July, with the result that the government intends to introduce its own bill next spring. Why the change of mood? One or two recent high-profile cases — including those involving the medical writer Ben Goldacre and the mathematician Simon Singh — were timely reminders that even scientists writing accurately on matters of the highest public interest faced the most grotesquely time-consuming and expensive battles to defend their work. Not forgetting the clumsy oil traders Trafigura paying Messrs Carter-Ruck to try to muzzle parliament itself as part of their wider attempts to stifle reporting of the dumping of toxic waste in the Ivory Coast.
Lester is optimistic that the government will stick to its promise in its May coalition agreement to back libel reform. Let’s hope he’s right. We pride ourselves as the country which invented free speech — Milton, Wilkes, Cobbett and the rest. We’ve been in some danger of losing it.
Alan Rusbridger is editor of the Guardian