Monday, April 12, 2004

Libel lunacy

A couple of weeks ago, Simon Master, of Random House UK, argued in The Bookseller that the laws of libel in the UK are absurdly favourable to those who wish to stifle criticism and comment. Master is right, and what he has to say cannot be said too often or too loudly.

The rich and powerful, who are notoriously thin-skinned, can all too easily launch a libel action in the UK. Do that often enough, and even major newspapers grow tired of the legal costs. Henceforth they will think twice before making any sort of statement about you except the most favourable.

In the course of his article, Master describes a case where Random House was obliged to defend one of its books against a libel writ issued by Armand Hammer. The book had been published in the US without any difficulty, because the laws are markedly different there. But in the UK Hammer could sue, and did. Random House’s pre-trial costs were over £500,000 by the time Hammer died, and brought the case to a conclusion. The firm had, of course, no hope of recouping that sum from sales of the book in question.

Since I am not slow to dish out criticism of publishers (see below) I must pause at this point to say that I warmly admire Random House in this instance, and there are other publishers who have acted equally responsibly.

If you want an example of another rich bully, you need go no further than Robert Maxwell, a ruthless individual who employed a small army of lawyers; their sole task, it seems, was to issue writs against anyone who dared even to hint at what the son of a bitch was up to. For details see David Hooper's excellent book on libel, Reputations Under Fire.

While the situation as regards major publishers and national newspapers is fairly well known, what may not be appreciated is that the effects of the draconian libel laws extend far down into society, to even the most modest levels.

For example, about twenty years ago a friend of mine gave a lecture about university funding. He wanted to make the point (which was recognised as true by anyone in that field) that the cost of scholarly academic journals was a scandal; it was, quite simply, a racket. My friend intended to express this truth in fairly mild terms - something along the lines of 'universities get steadily poorer, while Mr Maxwell and his friends get steadily richer.' However, knowing Maxwell's reputation, he went to the trouble of taking legal advice on this comment. He was advised, in the strongest terms, to leave it out.

Of course, Maxwell would never have won a case for libel on the basis of such a mild comment as the one my friend intended to make. But it was pointed out that if the rich and ruthless Mr Maxwell did issue a writ (and he was quite capable of it), cost would be incurred by the defendant, time would be consumed in large quantities, et cetera, et cetera. Not surprisingly, my friend decided to leave criticism of Mr Maxwell to the big boys.

I myself became sensitised to the dangerous nature of our libel laws a couple of years ago. I came across a case - dating from the 1980s - in which a major publisher had been, shall we say, less than generous to an author. Note, please, that I do not say that the publisher had been stealing the author's money. Dear me no. Perish the thought. Publishers don't do that sort of thing. They are all gentlemen. So we will just say that the author had signed, with her eyes open, but without professional advice, a series of contracts containing terms which were less than generous to her. To be specific, she was getting about one quarter of the royalty level on US sales which any competent agent might have obtained for her. And since she was a successful author, with about 100 books to her credit, the sums of money involved were quite considerable. It seemed to me that, even though this case dated from some twenty years earlier, the circumstances deserved to be more widely known. If you are familiar with mistakes from the past you may perhaps be able to avoid making similar mistakes yourself in the future. So I wrote an article about this state of affairs for a writer's magazine.

The editor of the magazine liked the article, but he was a little worried about the legal aspects. Would I mind if he took advice? No, I didn't mind. He then sent me his lawyer's letter.

The lawyer, not surprisingly given the current state of the English libel laws, wanted me to make a number of changes. I was no longer to suggest, even in the mildest terms, that the publisher might in any way have been remiss. Heaven forfend.

Well, since the editor of the magazine had incurred costs, I felt morally obliged to help him out, so I gritted my teeth and revised the article. After a few hours' work I managed to find a form of words which satisfied the lawyer while at the same time allowing a reasonably bright reader to understand what I really thought about the situation.

The editor then suggested that, to be on the safe side, he had better show the article to the publisher in question, and invite comments. Again I agreed, because I had by now read up a bit about the law of libel and had realised that, if I was not careful, sensitive parts of my anatomy might get caught in the mangle.

The publisher took his time, but eventually came back with a version of events which purported to show that his firm had at all times acted with perfect propriety. Interestingly, he had taken advice both from his UK lawyers, and from lawyers representing his US parent company. We know this because, when replying to the editor, he attached emails from these parties to add weight to the points he was making when commenting on my article.

The editor of the magazine was well pleased. Even if the article was never published, he said, we had prodded the publisher with a sharp stick and made him realise that some people, at least, were keeping an eye on what he was up to. But the editor did wonder whether I could revise the article yet again to take account of the publisher's points.

It would be wearisome to go into any more detail. Suffice it to say that I did revise the article. I included an unambiguous statement to the effect that, in the case which I was describing, there was nothing illegal in the arrangement between author and publisher. Neither, I added, was the arrangement unethical in the sense that it varied significantly from standard trade practice of the time. Short of warmly commending the publisher as a splendid example of good practice, I could scarcely do more.

And all of this, please note, for a tuppeny-ha'penny article, in a magazine with a circulation of 6000. When the article was eventually published my fee was £125.

Oh, and by the way. Later on in the 1980s, the author whose plight I was describing in my article eventually got herself an agent. When he began to review the author's existing contracts, the agent was, he says, 'shocked' by what he saw. Among other things, he suggested to the publisher that it might be necessary for the author to require a full audit of her past royalty statements.

Eventually, however, an audit proved not to be necessary. Guess what happened! Having reviewed the situation, the publisher offered to buy the copyright of 92 of the author's previously published books for a sum in seven figures.

The agent settled for that.


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