British MP exploits vague defamation law to sue Guardian journalist

Galloway is the master of the chilling effect. Vince Millett, CC BY

Maverick MP George Galloway has announced he is suing Guardian journalist Hadley Freeman over an accusation she made about him on Twitter, following his appearance on a recent edition of Question Time.

Galloway had argued that his anti-Israel stances on a number of issues have not spilled over into anti-Semitism. Freeman disagrees, although she has since deleted the tweet saying as much.

Galloway’s lawsuit against Freeman comes on the grounds of defamation, a precarious area of law when it so strongly intersects with public debate on controversial issues.

Before we decide about their spat, consider first a more routine case. Imagine a man, we’ll call him Joe, who bears a grudge against Dr Bright, his town dentist, for keeping him waiting too long for his root canal surgery.

Dr Bright is neither famous nor well known for anything at all. He’s just the local dentist. Incensed, Joe runs around hanging notices on buildings and trees, writing on his Facebook page and telling the townspeople that Dr Bright has been secretly administering cyanide to his patients.

Defamation laws include both libel, if written, and slander, if spoken. Joe has done both. Such misinformation could harm or entirely ruin Dr Bright’s career. Dr Bright is therefore entitled to show loss of earnings in court as part of a damage award.

There are two important things to note about Joe’s conduct. First, he is in no sense aiming to promote public dialogue on the current state of dental medicine. Second, Joe has not voiced a mere opinion, a sheer value judgement, about Dr Bright. He has not simply told people he thinks Dr Bright is a bad dentist, he has spread false allegations about an objectively verifiable fact.

Bad opinion is not bad fact

What, then, has Hadley Freeman done? Most would agree that not all criticism of Israel is anti-Semitic. Jewish Israelis, and their friends, publicly criticise the Israeli government every day. Nor is it seriously disputed that some criticism of Israel is anti-Semitic, as witnessed in many recent incidents throughout the world.

Most debate about Israel or about Jews does not take place at those extremes though. It takes place in a vast and murky middle. Unsurprisingly, the question as to whether a particular criticism of Israel, or indeed of Jews, counts as anti-Semitic is not a matter of sheer fact. It is a matter of interpretation and judgement, upon which reasonable people may – and emphatically do – disagree.

That is the kind of debate that is necessary for democracy to thrive, and which is undermined when courts allow themselves to stray from the proper function of protecting plaintiffs from damagingly false allegations of fact, and instead appoint themselves guardians of political decorum.

If a journalist brands David Cameron a racist, believing that his policies have an unfair impact on people from minorities, would we argue Cameron ought to be entitled to collect damages for defamation?

In this particular case, the organisation Media Lens has jumped to Galloway’s defence, asking if Freeman could cite examples of Galloway’s anti-Semitism. But any example she could cite would probably persuade some and not others. Even if an overwhelming majority were unpersuaded, a highly popular opinion does not create an objectively verifiable fact.

The big chill

But Freeman deleted her tweet. So what’s the problem? In fact, that’s the biggest problem of all. Decades ago, free speech scholars identified the “chilling effect”, which gives the law a double edge whenever it strays into the realm of public debate on controversial issues of the day.

Under current law, judges retain the power to police public debate. Most British and European lawmakers would insist that such a power is very narrow and certainly doesn’t hamper free and open discussion. But that’s exactly where the chilling effect kicks in. As long as the law maintains only a hazy line between, on the one hand, verifiable allegations of fact and, on the other hand, expressions of opinion, speakers and writers remain unsure about what they may and may not say.

Freeman backs down. Twitter

They end up self-censoring to stay on the safe side. In Freeman’s words, they delete tweets “to save a day in court”, which might indeed turn out to be a costly one. No one manoeuvres the chilling effect better than Galloway, who warned in a later tweet that “any traceable person who repeats her defamation will be added to the legal action”. In a mature democracy, that kind of taunt ought to be a paper tiger. Our law instead allows it to loom as a menacing diktat.

The UK and Europe have never adopted the so-called public figure exception to defamation law, which would further promote public debate by creating a stronger presumption of freedom for speakers when they are discussing high-profile politicians, or other persons who have visibly entered the cut and thrust of politics.

One rationale for that doctrine is that someone like Galloway has broad and immediate access to influential media and public fora, within which he can more than adequately respond to such criticisms, without having to run to the courts to defend himself. That is, crucially, what our forlorn Dr Bright lacks.

In addition to tightening the distinction between fact and opinion, the time is long overdue for lawmakers to undo the absurdity they have created – and the real damage caused to all citizens’ prerogatives of democratic participation – when they equate a journalist’s controversial allegations about a George Galloway with Joe’s controversial allegations about Dr Bright.