‘The rich don’t always fight fair’: Guardian lawyers, libel and lawsuits

It was 9pm on a Friday and I had finally sat down with a gin and tonic to watch a bit of catch-up television when the phone rang. It was an American lawyer fuming about a piece the Guardian had just published. As I scrambled to read into the story and figure out how I would raise the journalist involved, an urgent sport story landed in my inbox following a punch-up at a football match, quickly followed by a 2,000-word Observer story that needed to be 100% legally watertight.

Such is the lot of the media lawyer, often the last line of defence between a publisher and a hefty lawsuit. Freedom of speech is a fundamental part of any democracy, but exercising and defending it can be a difficult and expensive thing.

The rich, the famous and the powerful don’t like criticism and don’t like having their dirty laundry aired in public. They can be well-resourced, and will spend heavily on expensive lawyers. They don’t always tell the truth, or fight fair. En abril 1995, Jonathan Aitken, then a Treasury minister, denounced the “wicked lies” told by the Guardian and Granada TV’s World in Action about his business activities.

But the Guardian held its nerve and two years later his legal action collapsed and he was jailed for perjury and perverting the course of justice.

That story set the tone: never again would the Guardian be considered a soft touch when it came to defending itself. But the implication was that it would have to be sure of itself on every contentious story it published.

The Guardian operates with a team of in-house editorial lawyers who are available to work closely with its journalists to get legally difficult stories successfully over the line.

Our small team look after all publishing related legal issues for the Guardian and the Observer – from whether it is OK to publish a particular story or picture, to advising on leaked documents and court reporting. We also pick up and respond to legal complaints after publication.

Our primary aim is to ensure that what is published has been legally and editorially risk-assessed. Por supuesto, not every article needs legalling. We could get sent up to 50 articles a day for pre-publication legal review or checking, and we won’t know in advance, in most cases, what an article is about, so we need to be nimble and ready to move quickly from, decir, a sport story to a science one, to a long read on sexual abuse, to a foreign investigation about corruption. Por último, the decision on what to publish lies with the editors. There’s an old adage – lawyers advise, but editors decide.

Making a serious legal mistake can be time-consuming, costly and reputationally damaging. The prevailing global media landscape is pretty hostile. It’s not just about facing down legal threats. Donald Trump referred to reporters as “enemies of the people”. Attacks such as this have been a gift to strongmen dictators who wish to silence the press, and have increased the risk and likelihood of physical attacks on journalists.

The UK is not so friendly either. It is very expensive to fight a case all the way to a trial here. It can easily mean costs running into the hundreds of thousands of pounds. Even if you win you may still be well out of pocket, because of the way the legal costs regime works.

And if you lose, you may have to pay damages as well as the other side’s costs. As Voltaire said: “I was never ruined but twice – once when I lost a lawsuit, once when I won one.”

London is considered by some as the libel capital of the world, and many use English lawyers to silence their critics. Because we publish via a website, where anyone can access and read our stories, we face the possibility of being sued anywhere in the world.

Big investigative series generally present the biggest legal challenges, as they often publish material that powerful interests do not want aired – and involve many stories by a number of journalists, based in the UK and abroad. Aquí, editorial lawyers tend to get involved early on, so we can advise on what is being planned, and facilitate discussions around the public interest or what the editorial code is saying.

Luego, the journalists will put together any “right to reply” letters that will be sent out seeking comment from those who may be criticised. Once those letters go out, we can usually expect to get a barrage of responses, often from expensive claimant-friendly lawyers, some of whom are hired to try to put journalists off publishing, usually by whatever means they can – threats, bluster, as well as, where appropriate, pointing out that we have misunderstood something or missed a key bit of evidence.

These letters are often headed “private and confidential and “not for publication” and can be tricky and time-consuming to respond to, particular as things near the publishing deadline. We have to take on board what these letters say, consider how they might affect what the journalists want to write, and discuss any next steps.

Publishing 24 horas al día, 365 days a year around the world is a legally fraught business. The law can change very rapidly and we have to try to make sure we are up to date with how the courts at looking at things.

Por ejemplo, over the past five to 10 años, the courts have got very hot on what they call audit trails – they like to see evidence of journalists and editors’ workings and thought processes before something contentious gets published. This is a relatively new court-created development. It’s not something the government or a regulator have put in place. And it can be tricky when there’s a deadline looming.

A free press stands for the kind of liberties and tolerances that are vital and precious to all of us. As the philosopher JS Mill and the poet John Milton recognised, we need to believe and have faith that in a free and equal encounter with falsehood truth will emerge, that differences of opinion encourage debate and help truth emerge, and that by this process we have a better chance to get the whole picture and not a partial one fed to us by those in power or who are able to influence it.

My team are very privileged to be working for a news organisation that does its best to espouse these high standards and contribute in our own small way to trying to get the story, and hopefully the truth, over the finishing line.

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