GUARDIAN LONDON 03.18.00

Lies and libel: Geoffrey Wheatcroft

As the Irving and ITN cases show, the court is no place to establish the
truth By 03/18/2000 The Guardian Copyright (C) 2000 The Guardian;

Whatever the verdicts, neither action should have been brought. Whatever the
rights and wrongs in either case, the two libel actions which ended in
London this week show yet again how harsh and obscurantist our libel laws are.

In the suit brought by Penny Marshall and Ian Williams of ITN, the jury
awarded the plaintiffs heavy damages against the magazine LM. The even
weirder action brought by David Irving against Deborah Lipstadt and her
publisher was heard by a judge without a jury. Judgment is reserved and will
be given later.

Both cases ostensibly concerned history and truth. The ITN reporters claimed
that LM had accused them of fabricating a story about the Serb concentration
camp at Trnopolje in Bosnia. Irving says Lipstadt had accused him of being a
'Holocaust denier". While we await the Irving result, Marshall and Williams
claim they have now been vindicated. But have they?

Whether or not they should have been, neither case could have been brought
in the United States, not since an historic judgment a quarter-century ago.
A broad public-interest defence was extended so that it is very difficult
for a public figure - which plainly includes the ITN reporters and Irving -
to sue for libel.

So far from any such protection for the media, our own libel laws are
heavily stacked against the defendant. A plaintiff doesn't have to prove any
material loss, only that feelings have been hurt and reputation damaged,
something easy to assert but impossible either to quantify or refute in
court. Uniquely in law, the burden of proof is on the defendant, who has to
prove the truth of what was written.

Admirers of the law, like the late Lord Goodman, speciously say that truth
is an absolute defence. But exact truth is likewise very difficult to
demonstrate in court, and an attempt to do so may well be held to aggravate
the libel. As a result, the mere threat of libel is too often used to
silence a newspaper which understandably prefers the discretion of an
apology to the valour of a defended action. If a brazen or frankly
perjurious plaintiff has strong enough nerves, he can push all the way. Neil
Hamilton might have got away with it, Jonathan Aitken nearly got away with
it, and Jeffrey Archer actually did get away with it.

Not that this is a party-political question. One of the most shameful of all
such cases was the 'Venetian blind", as it was jocosely known in the Labour
party. In 1957, an article in the Spectator skittishly suggested that three
Labour politicians had been drinking a good deal at a Socialist conference
in Venice. The three, Aneurin Bevan, Richard Crossman and Morgan Phillips,
sued, testified on oath to their sobriety, and won large damages. Fifteen
years later, Crossman boasted (in my presence) that they had indeed all been
toping heavily, and that at least one of them had been blind drunk.

Apart from questions of truth and falsehood, the latest cases illustrate the
sheer oppressiveness of a law which can be used to punish or even ruin a
foe. Whatever the outcome, it is outrageous that Deborah Lipstadt should
have to give up years of her life to this case, and spend many weeks in
court, with nothing to gain.

While Irving has conducted his own case, the defendants retained the usual
array of solicitors, silk and junior. It has been obvious from the start
that Irving couldn't pay his opponents' costs if he lost. He can only
declare himself bankrupt and leave Lipstadt and Penguin with a bill more
likely in seven figures than six. What is the legal concept of the vexatious
litigant for if not to prevent such an abuse?

If anything, the other case was almost worse, and not just because of the
sight of a huge, rich news organisation using the law to crush a tiny
magazine, however cranky or even obnoxious. It's not often that Naom
Chomsky, Roy Greenslade and Auberon Waugh can be found on the same side, but
their round-robin letter saying that freedom of speech and media criticism
have been curtailed by the ITN case is surely correct.

According to Richard Tait, the editor-in-chief of ITN, the case was
necessary to defend the integrity of the two reporters, and according to Ed
Vulliamy 'the law now records that Penny Marshall and Ian Williams (and
myself for that matter) did not lie but told the truth". These claims are
frankly absurd.

Personally (though I don't have to add a rhetorical 'Am I alone . . .?",
since I know I am not), my view of Bosnia, ITN and LM has been in no way
whatever affected by the case. If anything, I think the less of the
plaintiffs than before, not to say of David Irving. If there are historical
disputes about Auschwitz or Trnopolje, a law court is the worst possible
place to conduct them.

Does Vulliamy seriously believe that our libel courts always establish the
truth? And are Marshall and Williams really happy to find themselves
alongside Lord Archer, of whom the law also once recorded that he did not
lie but told the truth?

The best outcome of these wretched proceedings would a reform of the law. It
is too much to hope that the burden of proving the falsehood of a statement
should be placed on the plaintiff. But there should be a much broader
public-interest defence, and the law of libel - written defamation - should
be assimilated to the law of slander, spoken or fleeting defamation, in
which the plaintiff has to prove actual damage or material loss.

The trouble is that a reform would have to be introduced in parliament. And,
as the names of Aitken and Archer, not to say Bevan and Crossman, remind us,
politicians have all too much partiality to the existing law. So we will be
stuck with a law which grossly infringes free speech while producing no real
winners. Apart from the lawyers, that is, who have enjoyed the real
victories these past weeks.

As Ogden Nash so well put it: 'Professional people have no cares - Whatever
happens, they get theirs."



THE EXPRESS LONDON 03.18.00

EDITORIAL

Sitting on a barbed wire fence is a feat only truth can accomplish

03/18/2000 The Express Copyright (C) 2000 The Express;

Wednesday afternoon in the High Court, and David Irving's epic performance
as his own advocate was drawing to a close. "I do not propose asking for my
costs in this action," he told Mr Justice Gray. "It is premature to be
telling me that," said the judge. "I would only address that question once
judgment has been given."

And it was impossible for him to say precisely when that would be. There was
no jury, because everybody agreed that the arguments would be too difficult
for a jury to cope with. It had been a very long case.

For two months Court 73 had been transported back 50 years to the most
dreadful events of the 20th century - via a paper trail of German archive
documents, disputed translations, photographs, diagrams and esoteric debate.

The issues were ones that most people thought would never be brought into
question. Is the story of Auschwitz, symbol of the most terrible and
iniquitous event in modern history, truth or lies? Were the gas chambers
really gas chambers? Was anybody even gassed there? Or was it a trumped up
myth?

And what of the Holocaust as a whole, meaning the systematic annihilation
ordered by Hitler? Did Hitler order the Holocaust of the Jews? Did he even
really know about it? On these matters Irving, who has spent 30 years
searching through the original documents, is seemingly at odds with
everything we have come to regard as truth.

Rather than being treated as a scholar who is asking hard questions,
increasing knowledge and widening the debate, Irving maintains he has been
libelled and defamed and vindictively harassed out of business. He is in
court suing Penguin Books and Deborah Lipstadt , author of a volume entitled
Denying The Holocaust - The Growing Assault On Truth And Memory. Irving
claims that the book calls him "an ardent admirer of Adolf Hitler" as well
as a Holocaust denier -the modern equivalent of the N-word and the F-word
(meaning Nazi and Fascist).

The Nazi concentration camps and what happened in them is, beyond question,
one of the most important and powerful passages in modern history. It is
treated with a special reverence that the most painful of tragedies command.
Irving does not share this. In a speech in Canada in 1991 he said: "I don't
see any reason to be tasteful about Auschwitz. It's baloney, it's a legend.
Once we admit the fact that it was a brutal slave labour camp and large
numbers of people did die, as large numbers of innocent people died
elsewhere in the war, why believe the rest of the baloney?

"There are so many Auschwitz survivors going around - in fact the number
increases as the years go past, which is biologically very odd, to say the
least. Because I'm going to form an association of Auschwitz Survivors,
Survivors of the Holocaust and Other Liars, or the A-S-SH-O-L-S." As you
watch him in court, he does not look like a man given to such crude filth.
He seems rather urbane: Naval college educated, domiciled in a flat in
Mayfair, articulate; a brilliant - if flawed, researcher. Many of those who
admire him most, to whom he is a figure of admiration, a speaker of choice,
do not, as you might imagine, share these qualities.

Those who are most disturbed by Irving have two causes for fear -one is the
rabble he appeals to, the other is the more long-distance effect of his
alleged "rewriting" of history. They see this "revisionism" as not just
wrong and wrongheaded but as a danger that festers and grows, putting truth
in peril and perverting the lessons of history.

In France and Germany, denying the Holocaust is a criminal offence; in
America free expression of views is protected by the First Amendment; in
Britain we believe in free speech, but within the confines of very stringent
libel laws.

Irving's highly charged theatre is occupying Court 73 and is played out in
front of a packed house of Holocaust survivors, their families, scholars,
journalists and a motley bunch of Irving's supporters. It is very easy to
pick out which ones they are. A few hundred yards away, in Court 14, some of
the same issues, or at least their resonances, have been up for judgment.
They concern another story of human suffering, another question about
truthful accounting.

This one is not the product of decades of searching through documents and
constructing a thesis, but of flying into Bosnia with a television news team
and coming away with pictures that shocked the world into action.

The notion and memory and image of what a "concentration camp" is, is at the
core of this case, too. ITN and two of its reporters, Penny Marshall and Ian
Williams, were suing LM (Living Marxism), a small circulation magazine, for
libel.

LM has published an article by Thomas Deichmann, a German journalist,
claiming that when they and their camera teams visited the Trnopolje camp in
northern Bosnia in 1992, they produced news reports for the ITN bulletins
and Channel 4 News that not only misrepresented what they saw but misled
viewers from the humblest British home to the White House. The article was
headed: The Picture That Fooled the World, which was to prove one of the
more expensive lines ever penned.

The article was judged to have been a damaging attack on their reputations
and professional integrity, and the damages awarded more than reflected that
- GBP150,000 each to the reporters and GBP75,000 to ITN - big money for
journalists and an organisation that remain in good esteem and whose careers
continue uninterrupted.

At the centre of the case was one image which was screened in the context of
a relatively lengthy news report, an image that became the front page
pictures of many newspapers and was arresting enough to make John Major call
his Cabinet together and Bill Clinton to take a new view on military
intervention against the Serbs. As you can see, its power came from what it
conjured up.

It showed a man, Fikret Alic, naked to the waist, pained-looking and
skeletally thin, his hand reaching through a fence of barbed wire. In the
minds of most people, whose memories retain certain symbols as especially
painful and resonant. It produces a jerk of recognition.

ITN was meticulously careful about the words it used about Trnopolje. The
words it never used were the words that featured on the front pages of the
tabloids the following morning: "Belsen 92" they screamed.

The pictures of Auschwitz and Belsen when they were liberated in 1945, of
the faces behind the barbed wire, is burnt into our psyche. Iron bars may be
crueller than barbed wire but they do not do the same trick when it comes to
horrific association.

There has been a heated debate about this barbed wire. How much of it was
there? Were the men penned in behind it? Why, if they were imprisoned by it
was it nailed to the inside of the posts, not the outside? Well a judge has
directed and a jury has decided that due care and attention was taken by ITN
to represent it for what it really was, which was probably several things at
once... a mixture of detention and refugee camp.

Richard Tait, editor-in-chief of ITN, gets very animated when you raise the
question of the barbed wire, its burden of imagery and so on. He says it is
just media studies nonsense. What mattered to ITN and indeed, what matters,
is the condition and treatment of the people behind the wire. He is proud of
what his reporters, in the face of danger and great unpleasantness,
achieved: "The report caused a great public outcry. The Red Cross was
allowed in, the camp was closed and the survivors given papers as refugees.
It prompted the West into a damage limitation exercise and changed US policy
a bit."

Phillip Knightley is one of Britain's most distinguished and experienced
newspaper journalists and author of The First Casualty, a classic study of
war reporting (the title comes from a quotation - "the first casualty when
war comes is truth"). He was put forward by LM as an expert witness in the
case, but the judge refused to allow any testimony from people who had not
been to the camp. Knightley had seen the ITN reports and all the out-takes.

"I have no way of knowing what the ITN team members said or decided when
they compiled their report," he said in his rejected statement, "but I know
enough about television war reporting to be able to say that once they saw
the image their cameraman had captured of an emaciated Fikret Alic with the
strand of barbed wire across his chest, that image then drove and dominated
the report." Knightley feels that even in the best hands it is very
difficult for TV to tell full and balanced stories. In the out-takes Penny
Marshall works very hard to get a full account of what is going on there.
Even so, for many, the image of barbed wire is still overpowering. "This,"
he says, "is in the nature of television."

Nobody doubts that there were terrible things being done in Bosnia, with all
sides making their violent contribution. But given the balance of British
sympathies, intervention against the Serbs was welcome. So, you might say,
it was a powerful film and if government responded in the right way, the
detail is unimportant.

Reporters and television crews work under pressure and all we can ask for is
that they know what they are doing and work in good faith. They did. ITN
felt it had to sue to protect their reputation and because it felt LM was
waging a campaign against them that went on after the article. On the other
hand there are many serious people who think that finding out truths about
that Bosnian camp would have been better served by open debate than by
clamping LM in the leg-irons of the libel laws.

The David Irving case is rather different. It is he who is the claimant. His
views are horrible and his "scholarly" conclusions dangerously obtuse, but
only Mr Justice Gray can know whether he is a winner or a loser in this
case. Irving's website calls the judge's return "prize day".Anybody who has
sat through the whole of his case has heard a hell of a lot about the Third
Reich. How much of it is true is quite another matter. The law courts may be
the place to fight battles, score points and collect damages. But for
seekers of light, understanding and historical truth, it is very often not
the place to look.

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