Friday, 18 December 2009

Carter-Ruck and Trafigura.

Gloom and despair over at Libelreform on hearing the news that the BBC 'has admitted' libelling oil company Trafigura on Newsnight and paid it £25,000 as well as making an apology in open court.

It is often thought that these 'High Court deals' before a full hearing actually prove that a statement is untrue - they don't. They merely prove that the person who uttered the defamatory statement does not have the means, either financial or investigative, to prove the truth behind them, and is thus forced to apologise for having uttered them. There is a difference!

John Kampfner, CEO of Index on Censorship has said:

“Sadly, the BBC has once again buckled in the face of authority or wealthy corporate interests. It has cut a secret deal. This is a black day for British journalism and once more strengthens our resolve to reform our unjust libel laws.”

English Pen and Index on Consorship have issued a joint statement.

We believe this is a case of such high public interest that it was incumbent upon a public sector broadcaster like the BBC to have held their ground in order to test in a Court of law the truth of the BBC's report or determine whether a vindication of Trafigura was deserved. The deal is neither open nor transparent.

Everybody, except Mr Justice Eady, who astounded all present when he recently said:
"How many libel actions turn upon the burden of proof? I have been trying to recall one and have drawn a blank. Perhaps some of you can give an example."
is aware that with the burden of proof lying upon the defendant rather than the plaintiff, the issue of burden of proof is invariably dealt with at the pre-discovery stage, when the defendant discovers that he has neither the wallet nor the manpower to prove his case, and therefore conceeds before the issue is ever put in front of Steady Eady.

I disagree with English Pen and Index on Censorship. I don't believe that using £3 million of licence fee payers money is the right way to reform libel law. The BBC had very little chance, and certainly not the required investigative skils to prove that the concusions reached in the recent personal injuries civil claim - which stated, and has been accepted by the claimants - as being that claims that Trafigura caused 'deaths and serious long term injuries'were untrue.

It is tempting to blame the BBC for 'giving in' - but the alternative would have involved unpicking the very civil case upon which compensation had been paid out.

Either they would have lost - and £3 million licence fee pounds would have gone down the drain, or they would have won, thus proving that the expert's reports in the civil case were unreliable, and the claimant's compensation would have been held in escrow. Neither is a reasonable alternative.

As Lord Hobhouse famously observed in Reynolds v Times Newspapers [2001] 2 AC 127, 238A-B, there is no particular public interest in the dissemination of misinformation.

The BBC were correct to back down in this instance. Parliament is the place to rewrite our libel laws. The campaign should be directed towards MPs.


lemmiwinks said...

On the basis of that quote, 'Justice' Eady must be quite mad. We knew that, though, didn't we.

Still, every 'hobby' has its exponents, even Gerbling.

Edgar said...

Wasn't Eady the judge who permitted the publication of the blogger Nightjack's identity?

Sometimes, I think, there is also no public interest served in publishing true information.

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