The origins of the law of libel go back to Anglo-Saxon times, though in the Middle Ages it was dealt with by canon law in church courts rather than before the king’s justices. Under the 1275 Statute of Westminster, however, slandering the king or the nobility (‘scandalum magnatum’) became an offence to be pursued under Common Law before the king’s courts. Until the 16th century, little distinction was drawn between spoken or written statements, but the rapid spread of printing made it important to separate the spoken word, which might easily be misheard or misreported, from the written word, which was permanent and unmistakable.
Libel became a civil law offence in the 16th century, and the reign of James I (1603–25) saw a steep rise in the number of cases, many brought by the Attorney-General, Sir Edward Coke. Libel actions were of three types: false allegations of crime; of professional incompetence; or of carrying an infectious disease, especially sexual disease – a category that was often targeted at women.
Libel actions could also be used by those in authority to silence criticism, especially as English law placed the burden of proof on the defendant rather than the plaintiff – as it still does. It is presumed that the defamatory statement is true, so the burden of proof is placed on the defendant to prove it is not. Apart from parliamentary privilege, which protected MPs from prosecution for defamatory statements they made in the Commons, the only sure defence against a libel accusation was to prove the truth of the statement complained of, which was a notoriously difficult thing to do. And in James I’s time, even that would not necessarily prevent a conviction. The 1843 Libel Act allowed the courts to take the offer of an apology or the absence of malicious intent into account, but the scales were still heavily weighted against defendants.
By the 20th century, London was becoming the ‘libel tourism’ capital of the world, favoured by the rich because bringing a case there carried a high probability of winning – plus the likelihood of substantial damages.
In recent years, parliament has sought both to tighten up the libel laws and to strengthen the position of defendants. The Defamation Act of 2013 clarified that mere opinion could not be held libellous, while also clamping down on libel tourism and requiring plaintiffs, including businesses, to demonstrate serious reputational harm or financial loss. The 2013 Act also substituted trial-by-judge for trial-by-jury and considerably extended the scope of privilege against liability for libel to include academic papers, website owners, and reports on the proceedings of foreign governments.
Nevertheless, the burden of proof remains on the defendant. Many journalists are concerned that English libel law constitutes a serious threat to press freedom, either by direct action or by lawsuits brought by the rich and powerful which have little chance of winning but can still intimidate defendants or drain them of money and resources.
Let’s look at how the law has worked in practice, with nine landmark cases…
R. v John Wilkes (1763–64)
John Wilkes was a radical journalist and MP who had gleefully got under the skin of King George III and his ministers with his written attacks and satires. In 1763, however, he seemed to have gone too far when Issue 45 of his newspaper, the North Briton, attacked the peace terms negotiated at the end of the Seven Years’ War (1756–63), which were announced in the King’s Speech at the State Opening of Parliament.
George III issued a writ against Wilkes for seditious libel, using a general warrant to enforce it, which meant everyone involved in producing and distributing the newspaper was arrested. Wilkes successfully claimed parliamentary privilege against arrest for libel and challenged the constitutional propriety of General Warrants; he won his case. However, his enemies at court had been preparing a second line of attack: they used his authorship of an undoubtedly obscene poem, Essay on Woman, to pursue him on the same charge – and this time, Wilkes fled to France. When asked by a French acquaintance just how far the liberty of the press extended in England, he is supposed to have replied that that was what he was trying to find out.
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In 1768, unable to meet his French creditors and keen to clear his name, Wilkes returned to England and was returned to parliament as MP for Middlesex. He also submitted to the judgement of the High Court, which sentenced him to two years in prison. The Commons expelled him and declared his defeated opponent, Colonel Henry Luttrell, to have been elected. This was only after a long battle of wills with the Middlesex electorate, during which Wilkes was returned three times, despite being in prison!
Wilkes then turned his attention to the City of London, where he became an Alderman and even Lord Mayor. He soon grew out of his radicalism and became a pillar of the establishment. His case highlighted some of the most blatant attempts of the crown and of ministers to use the libel laws to stifle parliamentary opposition.
James Abbott McNeill Whistler v John Ruskin (1878)
When does art criticism cross over into personal abuse? That was the question raised by the libel action brought in 1878 by the British-based American artist James McNeill Whistler against the celebrated art critic and writer John Ruskin, Slade Professor of Fine Art at Oxford. Ruskin was a firm believer that art had a duty to contribute to the moral health of the people.
In his magazine, Fors Clavigera, Ruskin reviewed an exhibition at London’s Grosvenor Gallery which displayed work which had not been accepted at the Royal Academy: he singled out his friend Edward Burne-Jones for high praise but strongly condemned Whistler’s Nocturne in Black and Gold, the Falling Rocket, an impressionistic image of a falling firework over the Thames at night. Ruskin objected not only to what he saw as a lack of form in the painting, but to its high asking price, commenting: “I have seen, and heard, much of Cockney impudence before now; but never expected to hear a coxcomb ask two hundred guineas for flinging a pot of paint in the public’s face.” Whistler sued.
It has been suggested that Whistler’s motivation may have been the publicity the trial was bound to attract as much as his outraged feelings. If so, he certainly achieved his aim: press interest in the case, which only lasted two days, was intense. Ruskin was already in declining health so declared himself too ill to attend, and Burne-Jones spoke for him in court – reluctantly it should be said, since he hadn’t wanted to be drawn into the dispute. Whistler, clearly enjoying himself, was on top form, entertaining the court with his witty repartee: when asked how he could justify asking two hundred guineas for work knocked off in a couple of days, Whistler gave the famous reply that he asked it not for two days’ work but for the knowledge of a lifetime.
Yet if Whistler gained the publicity he craved, it did him little good: the court awarded him a farthing (a quarter of a penny) in damages, leaving him financially ruined: he was declared bankrupt the following year. Ruskin too was brought down by the case, resigning his Oxford Chair shortly after the trial and sinking into the mental collapse that blighted his final years. He died on 20 January 1900.
- Read more | A beginner’s guide to art history
Oscar Wilde v the Marquess of Queensberry (1895)
It is telling that Oscar Wilde had to remind the court hearing his 1895 libel action against the Marquess of Queensberry that he was the prosecutor in the case, because his action quickly passed out of his control, forcing him, not his opponent, Queensberry, to defend himself.
The Marquess of Queensberry, a pugnacious character best known for drawing up the rules of boxing, was incensed by the intense relationship that had developed between Wilde and his son, Lord Alfred Douglas. Queensberry suspected, rightly, an active homosexual affair, which was then a criminal offence. Continually frustrated in his attempts to confront Wilde, who was at the height of his literary fame, Queensberry finally set a trap by leaving a card with the hall porter at Wilde’s club apparently addressed, as far as his difficult handwriting can be deciphered, to “Oscar Wilde, posing somdomite (sic)”. The sensible course for Wilde, and one urged by his friends, would have been to shrug it off, but the fact that the porter had seen it technically constituted publication and, enthusiastically egged on by Lord Alfred, who relished the prospect of seeing his detested father in court, Wilde sued for libel.
Queensberry engaged Edward Carson, a contemporary of Wilde’s at Trinity College, Dublin, to defend him; Wilde commented that Carson would doubtless pursue him “with the added bitterness of an old friend”. Wilde assured his own barrister, Edward Clarke QC, that there was no truth in the allegation of homosexuality and repeated his denial in court; however, Carson was not only able to infer homosexual themes in Wilde’s works, such as The Portrait of Dorian Grey (1890), but he quoted overtly homoerotic passages from Wilde’s correspondence with Lord Alfred Douglas.
Wilde’s final downfall came when Carson asked if he had kissed one of the young men with whom Wilde admitted consorting: “Oh dear no,” replied Wilde, “he was, unfortunately, extremely ugly. I pitied him for it.” Carson latched tenaciously onto Wilde’s reply, which appeared to show that Wilde would indeed have kissed the man had he been better-looking. Queensberry’s defence of justification was upheld. Wilde, already living well beyond his means, could not afford to flee to France, as even Queensberry expected him to do, and he was accordingly arrested for “gross indecency” and sentenced to two years imprisonment with hard labour. He served most of his sentence in Reading Gaol (1895–97), an experience which came close to destroying him.
- Read more | Oscar Wilde’s tragic end
Dr Wladislaw Dering v Leon Uris (1964)
Leon Uris’s 1958 novel Exodus, about the creation of the state of Israel, gave rise to the first Holocaust-related libel cases in the British courts. An American of Jewish Polish-Russian extraction, Uris had researched his novel and in a footnote he named four doctors at Auschwitz who had carried out experiments on inmates in the camp. These operations included sterilisation and the removal of ovaries, which was often carried out without anaesthetic. One of the doctors, Dr Wladislaw Dering, sued for libel.
Dering, who held the OBE for services to medicine, was of Polish origin and had himself been an inmate at Auschwitz. After the war he had settled in Britain and had worked for a time in the protectorate of British Somaliland, but in 1948 the Polish government had sought his extradition on charges of war crimes. The Home Office had deemed there was a prima facie case for him to answer; it was also pointed out in the House of Commons that he had been listed as a war criminal by the United Nations on three separate occasions and that he was also sought by the governments of France and Czechoslovakia. Nevertheless, the Home Secretary, James Chuter Ede, decided the evidence was inclusive and Dering was released.
If this legal success gave Dering the confidence to sue Uris 16 years later, he was badly mistaken. His case was that Uris’s claims were heavily overstated and that, while he had conducted operations, he had never done so without anaesthetic. Uris’s legal team called evidence from Auschwitz survivors who had been operated on by Dering, as well as a list of operations written in part in Dering’s handwriting.
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Particularly powerful testimony came from a French doctor Adelaide Auval, who not only confirmed that such medical experiments had taken place but stated that she had refused to conduct them and had received no punishment as a consequence. This demolished Dering’s defence that he had only acted in fear of being shot if he refused. After a trial lasting 19 days and conducted in six languages, the jury decided that, technically, Dering had indeed been libelled; however, they awarded him a mere halfpenny’s damages, making it clear they believed Uris’s claims; the judge also directed that Dering pay Uris’s costs and refused him permission to appeal.
Dering’s reputation collapsed and he died within a year; Uris went on to turn the trial into a novel, QBVII, which in 1974 was made into a TV series starring Anthony Hopkins as a fictionalised version of Dering.
Sonia Sutcliffe v Private Eye (1989)
The magazine Private Eye was a product of the satire boom of the 1960s: it was launched in 1961 by a group of public-school friends and was soon taken over by Peter Cook. Its style retained the homemade look and schoolboy humour with which it had started. It combined irreverent wit – especially in its distinctive covers, which inserted speech bubbles onto photographs of prominent figures – with serious investigative journalism, which occasionally landed the magazine in court. For example, it had a long-running feud with the media tycoon Robert Maxwell, who in 1986 won £55,000 in libel damages after the Eye accused him of soliciting honours for cash.
Three years later, the magazine’s editor, Ian Hislop, faced a much more serious libel case brought by Sonia Sutcliffe, wife of the serial killer Peter Sutcliffe, who had been convicted in 1981 of the murder of 13 women in the north of England. The Eye had criticised Sonia Sutcliffe at the time for seeking to profit from her husband’s notoriety by negotiating a lucrative press deal. She sued in 1989, getting her case in before a six-year statute of limitations on libel cases came into force. She won £600,000 in damages, which was £100,000 more than the previous record. “If that’s justice,” Hislop commented outside the court, “then I’m a banana”.
The case came close to bankrupting the magazine and Hislop had to launch the “bananaballs” fundraiser, which eventually raised £102,000 to finance an appeal. The fact that Sutcliffe had received substantially more than the payouts awarded to the families of her husband’s victims did much to turn public opinion against her. The News of the World, which had made similar claims about Sutcliffe and, like the Eye, had refused to settle out of court, revealed evidence that she had indeed been negotiating with the press and thereby profiting, in effect, from her husband’s crimes.
Private Eye‘s appeal went ahead and the damages were reduced to £60,000; the magazine distributed the excess money from its appeal among the families of Sutcliffe’s victims. The case inevitably attracted a lot of publicity and helped to highlight some of the absurdities of the libel laws that provided a key point in the movement for their reform. This culminated in the 2013 Defamation Act.
Lord Aldington v Nigel Watts and Count Nikolai Tolstoy (1989)
Historians, get your facts right! This was very much the message of the libel action brought in 1989 by Lord Aldington, a former Brigadier and Conservative Party deputy chairman, against the historian Count Nikolai Tolstoy.
Tolstoy had made his name with Victims of Yalta (1977), which told the then-little-known story of how anti-Stalin Russian Cossacks (a semi-nomadic people from southern Russia and Ukraine who had fought alongside the Germans in the Second World War and been taken prisoner by the western allies) were forcibly repatriated by the British and Americans under the terms of the Yalta agreement, in the full knowledge that they were likely to be shot.
Tolstoy’s 1986 book The Minister and the Massacres recounted a similar episode, this time of anti-Communist Croat and Slovene troops who, similarly, had fought alongside the Germans and who, at the end of the war, were handed over to equally certain death at the hands of the communist partisans led by Josip Broz (“Tito”). Reviews criticised Tolstoy for allowing his own sympathy for the Yugoslavs to cloud his historical judgement and for seeking, on insufficient grounds, to pin responsibility for the killings on two British figures: the future prime minister Harold Macmillan, who was then a British minister to the Mediterranean region, and Brigadier Toby Low, later Lord Aldington.
The case came to a head when Nigel Watts, a property developer who was pursuing an unrelated claim against Aldington, invited Tolstoy to help write an attack on Aldington’s character and wartime record for a pamphlet which he then distributed as widely as possible. It was this that persuaded an outraged Aldington to sue first Watts and then Tolstoy.
The case against Watts was clear-cut and he agreed to an out-of-court settlement. Tolstoy, however, was determined to defend his book in court, even though his publishers had agreed to withdraw it. It proved a costly decision; the court found against Tolstoy and awarded Aldington £1.5 million in damages, which, together with £500,000 in costs, made it the largest libel damages ever awarded in a British court.
Tolstoy declared himself bankrupt in 1990, though Aldington noted sourly that he continued his lavish lifestyle in a Jacobean farmhouse and kept his children at private school. In 1995, Tolstoy took the damages to the European Court of Human Rights on the grounds that such a heavy penalty amounted to a denial of his right of free speech. The ECHR agreed, and in 1998 Aldington finally agreed to accept £100,000 in settlement, nine years after his court victory.
Ironically, in 2000, the year Aldington died, Tolstoy inherited £1.5 million, the very sum Aldington had originally been awarded, from his stepfather, the novelist Patrick O’Brien.
Although it seems clear that Tolstoy’s work was heavily one-sided and that he was chasing a non-existent British conspiracy, and that therefore Aldington was justified in his legal action, the case highlighted the way in which English libel law could act as an infringement of human rights and again underlined the urgent need for reform.
David Irving v Penguin Books and Professor Deborah Lipstadt (1996)
This celebrated libel action was turned into a successful feature film, Denial (2016), starring Rachel Weisz and Timothy Spall.
David Irving had built a reputation as a historical writer specialising in the Second World War and specifically on the role of leading Nazis: his 1977 book Hitler’s War had attracted very favourable reviews. However, Irving’s clear sympathy for the wartime Nazis, coupled with his vocal support for neo-Nazi groups in post-war Germany, led him into increasingly extreme claims, including denying that Adolf Hitler had known about the Holocaust. He even described Hitler as the best friend the Jews ever had, and claimed that there had been no extermination of prisoners at Auschwitz.
Irving was notoriously litigious, and many writers and publishers were intimidated into withdrawing their claims against him; however, when in 1996 he sued Penguin Books and the American Professor Deborah Lipstadt for her claim that he was a Holocaust-denier, they decided to fight. The case finally came to trial in January 2000.
Lipstadt retained Anthony Julius – a Jewish lawyer and academic who specialised in combating antisemitism – as her solicitor. In effect they turned the tables on Irving by putting the accuracy of his books at the centre of their case, using a team of researchers headed by Richard Evans, then Professor of Modern History at Cambridge, to go through Irving’s footnotes and trace them to their sources. What they found was that Irving systematically mis-rendered, mistranslated or otherwise slanted the archival record so as to favour the Nazi perspective. His voluminous private diary, which was subpoenaed for the case, revealed chilling evidence of his obsessive hatred for Jews and his white supremacist views.
The judge found for the defendants, describing Irving as a racist, a holocaust denier and a systematic falsifier of the historical record, and awarded the defendants costs amounting to £150,000 as an interim sum. In 2001 Irving’s appeal failed and the following year he was declared bankrupt.
- Read more about the Irving v Lipstadt case
In February 2006, Irving was sentenced to three years in prison by an Austrian court for various speeches he had made in which he denied the existence of gas chambers at Auschwitz, though in December that year his sentence was reduced to the 13 months he had already served in prison. He was released and deported to the UK.
- Read more | Confronting Holocaust denial: “History is more of a battleground now than ever” says David Baddiel
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Listen: Richard J Evans answers key questions about the Third Reich
McDonald’s v Helen Steel and David Morris (1997)
When, in 1986, Helen Steel and David Morris distributed a cheaply produced leaflet in the Strand attacking the morality and business ethics of the fast-food chain McDonald’s, they unwittingly triggered a veritable ‘David and Goliath’ battle in the courts and the longest-running libel case in British history.
McDonald’s was fiercely defensive of its reputation and had used the threat of legal action to cow many critics with much greater resources than Steel, a part-time bar worker, and Morris, an unemployed postman, who were members of a small campaigning group called London Greenpeace. When McDonald’s sued the group for libel in 1990, Steel and Morris decided to fight, even though, without legal aid (which is not available for libel cases), they could not afford counsel and would have to represent themselves. However, they received plenty of pro bono legal advice for what the press, inevitably, labelled the “McLibel” case.
When the case finally came to court in 1995, Steel and Morris mounted an impressive legal defence, cross-examining McDonald’s executives about the company’s food and hygiene standards, its impact on the environment, and its terms of employment and corporate practices. As the case dragged on, McDonald’s offered to settle the case if Steel and Morris would stop issuing their leaflets and keep their criticisms of the corporation to private conversations with friends: the pair replied that they would be happy to comply, if McDonald’s in turn would cease their advertising and only recommend their restaurants privately to friends.
In 1997, after 313 days in court, the judge gave his verdict, finding largely (but not wholly) for McDonald’s and awarding the corporation £60,000 in damages, plus costs. The judge found that Steel and Morris had been right in their claims that the corporation exploited their workers, inflicted needless cruelty on animals, and issued misleading advertising.
Faced with a huge bill which they could not hope to pay, Steel and Morris lodged an appeal which was heard in 1999. The Appeal Court largely upheld their case, reducing the award of damages by £20,000, but did not agree with their argument that multinationals should not be allowed to sue for libel over fair criticism of their operations. The Times commented that the case had “achieved what many lawyers thought impossible: to lower further the reputation of our law of defamation in the minds of all right-thinking people”.
In 2005, the European Court of Human Rights ruled that the denial of legal aid in a case against such a wealthy corporation had amounted to a denial of Steel and Morris’s rights both to a fair trial and to free expression. The ECHR commented that in a democratic society, campaigning groups like London Greenpeace must be able to operate and to disseminate information on matters of public interest, such as health and the environment, without fear of being crushed by wealthy, self-interested corporations.
The case inspired a documentary film by Franny Armstrong and Ken Loach. It was also an important factor in the framing of the 2013 Defamation Act, which brought in the threshold of “serious harm” to a company’s reputation before it can sue for libel. Had it been in force in the 1990s, the McLibel case could never have been brought.
British Chiropractic Association v Simon Singh (2008)
How far can the defence of ‘fair comment’ go in a libel case? In 2008, the Guardian published a piece by its science writer, Simon Singh, criticising some of the bolder claims made for chiropractic – namely that it could treat various childhood conditions, including ear infections, colic, and asthma – and denouncing the British Chiropractic Association (BCA) for maintaining a respectable face while in fact, he claimed it “happily promotes bogus treatments”. The BCA sued for libel and, in a preliminary hearing, the High Court judge Mr Justice Eady dismissed Singh’s claim that he was offering his opinion as fair comment, saying that he was in fact asserting as an established fact that the BCA was acting dishonestly and that therefore the defence of fair comment was not open to him.
Singh took the ruling to the Court of Appeal. In a unanimous judgement, the Court of Appeal decided that Eady had been wrong: Singh had clearly demonstrated that the BCA had made the claims he said they had and had shown that these claims could not be sustained by scientific evidence. He was therefore entitled to his opinion that the BCA’s claims were bogus. The BCA dropped the case, though Singh’s victory had cost him some £200,000 in legal fees.
The Singh case had a much wider significance. Like the McLibel case (above) it informed the framing of the 2013 Defamation Act, making it much harder for institutions to use libel to defend themselves from proper scientific investigation of their practices and claims. Speaking in the Court of Appeal, Lord Judge pointed out that the law of libel could conflict with the right of free speech and that it might be better to change the defence of “fair comment” to “honest opinion”, as is the case in some other countries, as a way of protecting free enquiry and expression from legal penalty. The recommendation was included in the 2013 Act.