Martin Soames, The Guardian

LONDON, 20 January 2004 — A month after the attacks on the World Trade Center the BBC ran an untrue story on connections between Al-Qaeda and a diamond company, Oryx. The company sued for 10 million pounds sterling and was awarded judgment and costs in July 2001, with damages agreed later at a lower figure. Comprehensive retraining was organized for BBC journalists as a result. This month Khaled bin Mahfouz received substantial damages, costs and an apology from Associated Newspapers for a story wrongly linking him personally and financially to Osama Bin Laden. Why is there a surge in libel claims linked to terrorism and is it having a chilling effect on essential reporting?

It is highly defamatory to say that someone has ties to a terrorist organization. Accusations of direct involvement are unlikely to be sued on: They are usually true and the claimants are incapable of sustaining claims. But the territory of terrorist funding is much harder to police. In practice most claimants come not from the bunker but the bank, usually based in Saudi Arabia.

There are several problems for the media in dealing with these claims. First, many devout Muslims give generously to charity and cannot be expected to know where their funds will end up. Should they be blamed if their gifts are mixed with tainted or laundered cash which ends up with the family of a suicide bomber? Second, Arab names are frequently misread or misunderstood in the West. This cuts both ways, as the passengers interrogated on suspended or delayed flights to America just before Christmas will appreciate. Third, evidence may be ambiguous and difficult to verify, often coming from sources who cannot give evidence because of risks to their lives — there may also be cultural problems with evidence which looks damning in one culture but may not stand up in another. Taken together these elements mean stories which need to be published are going to be hard to defend.

The traditional front-line defense against serious allegations is justification: Proving that what has been published is true. This needs strong evidence. The second line of defense, qualified privilege, protects factual inaccuracy in responsible journalism on public interest grounds so long as it is not reckless. Most defendants plead both defenses. A defense of qualified privilege alone can take the heat off the claimant and turn it instead on the journalist, who will be grilled at trial for any signs of apparent recklessness. Defendants may suspect that the court’s view of what amounts to responsible journalism in the public interest can vary. Many cases are won or lost on the outer edges of justification. When evidence is hard to come by, defendants argue not that a claimant did a particular act but that there are questions to be asked about his involvement or reasonable grounds for suspecting it. Because this tricky area has such tactical importance the courts have set out guidelines on different levels of meaning; the more direct the accusation, the stronger the evidence needed to support it.

There are also guiding principles for allegations against claimants indirectly involved in wrongdoing, the usual territory for allegations of terrorist involvement. The guidelines are skillfully constructed legal instruments of dissection dealing with key issues such as hearsay and circumstantial evidence, knowledge at the time of publication, reliance on information from government agencies and repetition of allegations made by others. They are indispensable to lawyers analyzing claims after publication, but it is harder to see how much help they will give to a journalist trying to file a story on deadline and to protect a source who fears for his life.

There have certainly been some very bad libels against innocent people and businesses accused of terrorist involvement. There are alarming stories of hysterical or loosely drafted watchlists originating from the US and of genuine charities being investigated without cause. But this should be balanced against the genuine public interest in the need to know. The media cannot and should not be expected to get it right all the time. Even the best watchdog bites the postman occasionally.

There are some signs that the libel climate is getting chillier for the media. If this is right, there will be a great impact on reporting terrorism. At the end of last year an award of 533,000 pounds sterling was approved, smashing through the unofficial glass ceiling of 200,000 pounds sterling. This will give heart to claimants from other jurisdictions who have been discouraged recently from suing in England by levels of damages which barely cover their costs. There are stories of enterprising libel lawyers touring Saudi Arabia in the months after Sept. 11 looking for claimants libeled either by the media or by having their bank accounts frozen.

Of most concern to the media, even rich claimants are now making tactical use of conditional fees in libel. No win, no fee agreements mean that claimants do not have to pay their own legal costs if they lose, but if they win their solicitors can recover double their usual charging rate from the defendants, bringing some of them close to charging 1,000 pounds sterling an hour.

A newspaper defendant has argued that the mark-up on conditional fees has a chilling effect on the right to freedom of expression, making the media either reluctant to publish or holding it to ransom through fear of excessive costs. That argument was rejected by the court but is likely to reappear in other cases. As legal costs go up, damages escalate and tension rises, there is a clash between reputation and the right to know. This will be brought to flashpoint on the issue of terrorism.

— Martin Soames is a media litigation partner at DLA.