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 3 of 3)

David and Albert Prentice aren't going to have it so easy in their U.S. trial next March. Last October, the Prentices, prominent Ulster businessmen and alleged members of The Committee, filed a libel suit in Washington, D.C., against McPhilemy, his production company, and the American publisher of The Committee. If they are determined by the court, as a matter of law, to be public figures, then only McPhilemy's conduct as a journalist (whether he knowingly lied or was indifferent to the truth) will be at issue, not the book's truth or falsity. Truth will be at issue if the case goes to a jury, and that won't happen unless the Prentices are private figures.

McPhilemy's American lawyer certainly believes the Prentice brothers will be found to be public figures. Recent court papers filed by him allege, among other things, that the Prentice brothers have extensively advertised their business throughout Northern Ireland, sought publicity for their many charitable contributions, financed an anti-Republican printing company, openly cooperated with The Sunday Times in its McPhilemy litigation long before they had been identified as Committee members, and actively sought publicity for their lawsuit against McPhilemy. If McPhilemy can prove all this to the court's satisfaction, the Prentice brothers will be just another U.S. libel plaintiff statistic, one of the 90 percent who lose before trial on issues other than truth.

One issue arising from this tangle of cases is straightforward. Does the David Trimble lawsuit against Amazon.com, along with policeman Trevor Forbes' lawsuit against Barnes & Noble, endanger the future of Internet book sales in Britain by U.S. booksellers? In a word, no.

While it is true that U.K.-based booksellers, including Amazon's U.K. subsidiary, have removed the book from their Web sites, the major U.S. online booksellers--Amazon, Barnes & Noble, and Borders--continue to sell and ship the book to customers in the U.K. (The book's U.S. publisher, Roberts Rinehart of Colorado, no longer accepts orders for the book placed by customers in the U.K. on its Web site.) When asked why Amazon had taken the book off its U.K. Web site but still made it available on its U.S.-based Web site for sale to U.K. customers, Simon Murdoch, managing director of Amazon.co.uk and vice president of Amazon.com, explained: "From a legal point of view, it's actually quite a big distinction. The situation is, if you actually buy the book from any company in the States, as I understand, you would be actually bringing the book in yourself as an individual."

David Trimble is maintaining his suit against Amazon.com despite the fact that the book is no longer available on Amazon.co.uk. But there are two additional reasons why Amazon.com need not be worried about it. First, any libel judgment against Amazon in the U.K. will be enforced only against its assets located in the U.K. And, assuming that Amazon.co.uk is a subsidiary corporation and not simply a division of Amazon.com, English solicitors maintain that its assets cannot be used to satisfy a judgment against the U.S.-based parent. Second, there is an increasing trend among U.S. courts to refuse to enforce English libel judgments transferred to the U.S. because they are the product of a system which is contrary to the public policy of the United States.

The ultimate outcome of the U.K. suits against Amazon and Barnes & Noble, therefore, is that the U.K. libel system will not be able to impose its standards on books shipped from the United States. Equally important, English solicitors will no longer be able to effectively ban books in the U.K. simply by threatening to sue a bookseller. They can limit access, but banned books in the U.K. are a thing of the past thanks to U.S.-based online booksellers.

As to the other issues, the bottom line is that the British libel regime has resulted in the publication of a bestseller in the United States that credibly accuses the first minister-designate of the new government of Northern Ireland of providing political cover for terrorists. The U.S. libel regime is far less likely to have produced such a result.

Politically, the timing could not be worse. The situation is again becoming critical in Northern Ireland, and McPhilemy is an inconvenient presence not only to David Trimble but to British Prime Minister Tony Blair as well. Trimble's lawsuit only serves to focus more attention on himself and the accusations against him.

Tony Blair has now gone much further in Northern Ireland than Margaret Thatcher ever dreamed: Genuine power sharing with the Catholic minority is at hand; the IRA's guns are once again temporarily silent; and the Republic of Ireland has formally dropped any claim to sovereignty over Northern Ireland. Yet David Trimble, as the first minister-designate, is refusing to allow the new government to be formed because the IRA won't commence decommissioning its arms.

Trimble and the IRA are playing a dangerous game. Each has a diametrically opposed view of what the British will do if the peace process breaks down, and the cease-fire with it. Trimble trusts that Blair will again send in the British Army to restore order.

But trusting the British to do the right thing is not a policy; it's a wish. That Blair was a hawk on Kosovo is no guarantee he will be the same in Northern Ireland, especially in the face of what is widely perceived as Unionist intransigence. If the IRA breaks the cease-fire and the British don't send their army back in, Ulster will end up being led by a politician who only 10 years ago was advocating Ulster independence. And if Ulster independence comes, so probably will a new Irish civil war between north and south, much to the delight of the IRA, if not Sinn Fein, neither of which ever made the mistake of trusting the British to do the right thing for Ireland.

If David Trimble really wants to live up to the legacy of his Nobel Peace Prize, he should spend less time on his reputation and more on his country, U.K. libel law notwithstanding.

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