The critics should consider the Irving case closely before passing judgement on the libel laws, writes James Libson. James Libson is a partner in the contentious media group at Mishcon de Reya and headed the team that acted for Professor Lipstadt.
Two questions of interest arise out of Mr Justice Gray’s decision in the case of David Irving against Professor Lipstadt and Penguin books: how did the law of libel (the subject of so much criticism in recent years) do?; and are the courts an appropriate forum to resolve disputes of history? The answers are: very well and yes.
Libel cases have been in the headlines with Hamilton, Archer, magazine Living Marxism and internet service provider Demon. Each time, there has been a wholesale attack on libel law. Critics say: the law restrains free speech, too great an onus is on the defendant, juries are unpredictable, damages are too high and actions are too expensive.
But has the result in the Lipstadt case redressed the balance? According to the commentators, not really. They say that while the result is to be welcomed, Irving should never have been able to bring the action; or why should Penguin and Professor Lipstadt have to pay such huge costs to defend their right to publish?
However, the Lipstadt case in truth is a sparkling vindication of the libel laws. Everyone has a right to their reputation being protected. Every civilised jurisdiction recognises this. The only question is what limits are placed on that right. It is a question of balance. Irving was certainly defamed by Lipstadt. His reputation as an historian was seriously maligned. He sued. Her response was to say the allegations were true.
Would the result have been different in front of a jury? No. The evidence was overwhelming. Irving would have lost, but there would not have been Mr Justice Gray’s astonishingly strong and reasoned judgment. Irving would not have been branded in terms a racist, anti-Semite, holocaust denier and a pro-Nazi polemicist. That would have been regrettable.
Cases of this nature deserve a reasoned judgement and questions of the appropriateness of jury trials do arise.
What about the costs? Anthony Forbes-Watson, the managing director of Penguin, said at a post-judgment press conference, that for Penguin the value of the judgment and protecting the right to publish went beyond commercial considerations.
Penguin did take a brave stand. But libel actions and the associated costs are part of the process of publishing. They are to the publishing industry what construction disputes are to the building industry. If the litigation is expensive that is a criticism of the price of litigation – not of libel litigation specifically.
As to history, it seems almost received wisdom in the commentary on the case that the court is not the correct arena for historical debate. Two of those who expressed this view were Donald Cameron Watt and John Keegan, Irving’s subpoenaed witnesses. They missed the point. If people such as Irving do decide to launch attacks on their critics and are then found out, they can not then complain about the result. They argued history needs its mavericks, its unconventional, controversial figures. Each missed the point. History does not need liars.
There is a more important point. History was the background to the case. The case was not though about history. It was about Irving’s treatment of history. This was another of the case’s distinguishing features. Most cases are an examination of an historical moment: Was the murder committed? Was the contract breached? Was the employee fairly dismissed? The judge specifically commented that his role was not to make decisions about history. His was a value judgment on Irving’s integrity and his treatment of the historical record. Over 32 days of evidence, there was an unfettered, intelligent exploration of the historian’s craft and standards with which the court and Mr Justice Gray dealt admirably.
A fantastic result softens one’s attitude to the courts and the litigation process. In the light of such decisions everything looks rosy. Had Professor Lipstadt lost, no doubt attitudes may have been very different. She didn’t. The result was the right one and could perhaps only have happened in this country. In that respect, it is a testament to our libel laws.
The calls to alter the law radically should be resisted. Changes are happening anyway. Public opinion has seen a move away from the court being so claimant friendly; case law (through Reynolds) has conferred greater protection for responsible reporting and writing and the Human Rights Act will also have an effect on libel actions, as have the Woolf reforms. For the time being that is enough.