Truth, Terror and David Trimble

Is the Nobel Peace Prize winner complicit in murder? What the Brits can teach Americans about libel law.

Michael McMenamin from the October 1999 issue

(Page 2 of 3)

These factors--McPhilemy's reputation as a journalist, his lack of Irish Republican sympathies, his initial reluctance to do the program at all, the two confidential sources, the patent inconsistencies in his major source's recanting, and the numerous (if anonymous) former RUC officers who supposedly confirm RUC complicity in the unsolved assassinations--have a direct bearing on the likely outcome of any libel suit brought into an American court. Taking them all into account, it is not unreasonable to conclude that McPhilemy has acted throughout with a good-faith belief in the truth of what he has broadcast and published. And if that is the legal issue in a libel case, it won't get to a jury in the United States if the person suing is a public official or public figure.

That is among the reasons that most of the libel suits were filed only in the U.K., notwithstanding that the book is widely available in the United States. In the U.K., libel plaintiffs are thought to have it easier than in the U.S. For one thing, if you sue someone for libel in the U.K., it is the defendant who must prove the truth of what he published.

Also, plaintiffs in the U.K. can do more than sue the author and publisher of the alleged libel. They can sue anyone who disseminates it, including news dealers and booksellers. All they have to do is prove that the news dealer or bookseller had knowledge of the defamatory content and continued to sell the offending publication. The knowledge requirement is usually taken care of by the plaintiff's helpful solicitor, who sends an ever-so-polite letter to the bookseller or news dealer advising him to remove the offending publication from his wares or he will have his pants sued off. This usually does the trick, given the low profit margins of most booksellers and news dealers.

On the down side, the plaintiff must pay his solicitor for the lawsuit as well as the barristers who actually try the case. Contingent fees are forbidden. And if the plaintiff loses, he must pay the attorneys' fees for the defense. So while libel plaintiffs may have it easier in the U.K., the threat of losing and paying the other side's attorneys' fees acts as a deterrent to frivolous suits.

Unfortunately, there is no such deterrent in the United States. On average, far more frivolous libel actions are filed in the U.S. than in the U.K. So plaintiffs' lawyers in the U.S. frequently take libel cases on a contingent basis. Inasmuch as America does not have a "loser pays" tradition on attorneys' fees, the Supreme Court has helpfully placed a multitude of roadblocks in front of libel plaintiffs to keep them from raiding media treasuries. Plaintiffs have the burden of proof. And not only do they have to prove that the statements about them were false; they also have to prove that the media defendants were at fault. Specifically, if you are a private figure, you must prove that the reporter was negligent in doing his job.

If you are a public figure or a public official, the bar is raised even higher. A public official must show that the statements were false and defamatory, and that the reporter deliberately lied or was so reckless in his reporting that you could conclude he didn't care whether what he reported was true or not. This is commonly referred to by libel lawyers as the New York Times v. Sullivan rule, after a 1964 Supreme Court decision.

The Supreme Court has done all this in the name of the First Amendment, and the accepted dogma in the United States today is that it has been necessary to avoid a "chilling effect" on free speech. As a consequence, almost 90 percent of all U.S. libel actions are decided in favor of the media before trial on issues other than truth. It is by no means clear, however, that the constitutional standards of New York Times v. Sullivan are more of a deterrent to frivolous libel actions than the United Kingdom's practice of making the loser pay the winner's attorneys' fees.

Perversely, the U.S. system that makes it so hard for public figures and public officials to recover for damage to their reputation actually gives them a free pass when very bad things are said about them. All they have to do is issue a vigorous denial, because in the United States they are not expected to sue. They can hide behind New York Times v. Sullivan and say they don't want to spend tens of thousands in attorneys' fees to prove that a reporter was reckless when all they want to do is clear their good names, something the U.S. libel system is not designed to do if you are a public figure or public official.

But in the U.K., given all the advantages that a libel plaintiff possesses, public officials have long been under enormous pressure to issue libel writs if they have been defamed. If a public official merely satisfies himself with an angry denial, people start wondering, repeat the libel, and think, "If you don't sue, it must be true."

So which system better serves the public interest in terms of uncovering wrongdoing by public officials? It is probably impossible to quantify, but occasionally something comes along that allows you to draw a comparison. The Committee is just such an occasion, and in this case the U.K. system wins hands down.

None of the libel suits that arose in the U.K. in the wake of the 1991 broadcast of The Committee would have happened in the United States. Richard Monteith, the Belfast solicitor, filed both criminal and civil libel suits against McPhilemy even though the original documentary was careful not to describe any Committee members in any way that would allow them to be publicly identified. And even if it had, a U.S. public figure would have used the media, not the courts, to fight back. In addition to defending himself against Monteith, McPhilemy also was determined to rescue and restore his reputation as a journalist. That reputation had been battered by the media campaign against him and the program by the RUC, the Ulster establishment, and those media outlets that bought their spin. The Sunday Express, for example, accused him of lying to Channel 4 about threats to his life, and The Sunday Times accused him of perpetrating a hoax in the 1991 TV broadcast.

From the outset, McPhilemy contemplated libel suits against both papers in a way an American journalist would never have considered. It's fair to conclude that, but for the initial Monteith suits involving the documentary and the imperative to clear his own reputation, McPhilemy would not have undertaken the additional extensive research necessary to publish the book that identifies the names of The Committee members, and which resulted in the new lawsuits, including David Trimble's.

McPhilemy's suit against The Sunday Times is scheduled for trial in January in Britain; the only suit to be brought in a U.S. court is scheduled to come to trial here in March. While both trials will generate considerable heat, the British libel trial is the more likely to shed light on the book's essential allegations. This is because the defense in the American suit will focus on whether McPhilemy was reckless or negligent in his reporting, while The Sunday Times will focus its defense on the book's falsity.

McPhilemy attempted to limit the case to the Times' accusation that he was incompetent and careless at best, and a hoaxer and deceiver at worst. But in May, the Court of Appeal in London rejected McPhilemy's attempt. The Court of Appeal judge reasoned that The Sunday Times article at issue "comes close--I am inclined to say very close--to asserting that the programme's central thesis was untrue. I accept that in some circumstances a publication that the content of a programme is untrue may not be defamatory to the programme makers. But I consider that in this instance it adds to the defamatory sting to say, not only that the main content of the programme was based on obviously worthless evidence, but that it was, or probably was, untrue."

McPhilemy wanted to put himself and his journalistic methods on trial, not the truth of the central thesis of the program. The Sunday Times' lawyers finally figured out they might not win by an attack based on McPhilemy's incompetence or mendacity. Far better, The Sunday Times reasoned, to try and prove that McPhilemy's main source--James Sands--was unworthy of belief based on his erratic RUC-induced statements after the broadcast.