Should HOPE Not Hate sue Nigel Farage for libel?

Libel claims often do not work out well and are started for the wrong reasons.

Nigel Farage’s comments in the wake of the Berlin Christmas Market attack were disgraceful. Absolutely abhorrent. He accused the widower of Jo Cox of being linked to an ‘extremist’ group, HOPE not hate(HnH). He accused the group of pursuing ‘violence and undemocratic means’. Any reasonable and thinking person should rightly feel shocked and appalled.

HOPE not hate have demanded an apology and retraction or they will pursue legal recourse and are raising funds for just such a contingency.

I am in two minds as to whether this a wise move. As some of you may know, I have been on the receiving ends of several libel threats over the years, and have been defending myself through the courts for years now over one such claim, resulting in a full trial and subsequent appeals. I have prevailed. But as such, I have something of a bruised view of the merits and wisdom of libel action.

Defamation claims should have one purpose and one purpose only: to restore an unfairly diminished reputation and to provide appropriate recompense for any loses sustained as a result of a libel. However, many people threatening a claim have other motives for such action. Some of these motives are noble and some not so. None of these motives though, regardless of their intent or morals, are likely to result in a happy outcome for the claimant.

So, let’s be controversial. To a first approximation, I would argue that anyone making a libel claim is in the wrong, or at least misconceived in their action. There are exceptions, but we should start with the assumption that it is a bad move. There are a number of serious issues involved in libel that make me say this:

  • The are unintended consequences. Once you make your claim, your destiny is somewhat out of your hands. The courts may not agree with you and the public may perceive you in a way you did not intend. The Streisand Effect is one glaring example of this where an attempt to suppress some information results in it becoming more widely known.
  • Costs are astronomical. Libel law is complex and the process can take many years. Total costs for both sides can easily top a million pounds. Someone will have to pay for this. The monetary damages you are likely to be awarded if you win will be much less than this. The loser may be punished far beyond the extent of their error. As a claimant, you are gambling to lose much more than you could win. It is a lopsided bet. And even if you do win, you are unlikely to recover all your costs. Everyone tends to lose.
  • Libel law is complex and outcomes can be unpredictable. No-one can go into a libel case certain of the outcome. As I discussed with someone on Twitter today, libel law can be like quantum mechanics: if you think you understand it then you most probably do not. At least, libel law is not ‘understandable’ in a common sense way. It is technical, and requires the cool head of an experienced defamation lawyer to make an accurate assessment of the merits of a claim. Anyone on twitter can breezily urge you to sue for defamation. And any high street lawyer can tell you if you can make a claim. Only a good and experienced lawyer can tell you if you should. And should you wish to be a litigant-in-person, it is a bit like reading Chess for Dummies, thinking you know all the rules and moves, and then taking on a Grandmaster.

There are more general concerns about libel actions. They take a long time and stifle speech. Your own speech as a claimant or defendant is best curtailed during a claim to avoid exacerbating the problem or inviting a counter-claim. And the requirements that you disclose all relevant documents to the other party means you may be forced to make public private communications and other material that you never intended to be out in the open.

Of course, these are just the problems with well intentioned claims. Some people use libel for purposes other than restoration of a reputation. Libel claims can be used to intimidate or threaten. They can be used to silence and bankrupt opponents. A lawyer may see them as a means to a quick shakedown, as the receiver of a libel threat is often best advised to settle quickly, regardless of the merits of the claim, out of the fear that the claimant may be irrational enough or mean enough to go ahead anyway. Defamation proceedings can become a high-stakes form of poker: the strength of your hand is somewhat less important as to how you play it.

Many people who feel they have been libelled though are not really after huge sums of money. What they really want is a public statement that the disputed words were wrong and an apology. Once a claim gets to court, such an outcome is not likely. The courts do not force apologies. They adjudicate on the claim and award appropriate damages and costs. Ending up in court may mean that what a claimant really wants is no longer possible. If a person decides to settle though before court, then you may get what you want. But when Katie Hopkins and the Daily Mail issued an apology this week to the Mahmood family, does anyone regard this as a genuine and contrite recognition of the error that was made? Or was this a business decision made to minimise the risk of a full trial? Such apologies may often result in cold comfort.

So, the trap is to issue a claim because you feel outraged, appalled and offended at someone’s comments. Libel courts can do nothing about your feelings of disgust and offence. The statements may be wrong and abhorrent but the remedy almost certainly does not lie in a legal action. For a defamation claim to have merit there must be a damaged reputation that is repairable by the court. Being wrong, or even lying, is not sufficient.

For HOPE not hate, the central questions must therefore be around the extent and nature of their loss of reputation over these comments. Has their reputation been diminished as a result of Farage’s remarks? To what extent and impact? No matter how his remarks may be seen to be callous or even malicious, seeking revenge or trying to punish Farage are not good motives and not a basis upon which a claim can be made. Under the new English Defamation Act of 2013 the courts will require the claimants to show “actual or probable serious harm”. They will need to show how Farage has damaged them in his alleged defamation. Whose mind was changed in light of Farage’s remarks? Opponents of Farage will have not believed his remarks and so HnH cannot have suffered as a result. Supporters of Farage may well have disliked the group anyway. It appears to me, and remember, I am not a lawyer, the the claimants will have to identify a group of listeners to Farage who will have changed their opinions of Hope not hate as a result of the interview and thus formed a much more negative opinion of them.

This is, of course, not impossible at all, but it looks harder than simply registering the scale of outrage at his remarks and then deciding that he must be sued for libel. The law does not work like that. There can never be a ‘slam dunk’ libel claim. Careful consideration of the extent of the defamation and any defenses Farage might put forward must be considered.

If someone is known as a gobshite, can they really libel someone? If their words are not taken seriously by those people in which you wish to maintain a reputation, can a libel claim ever really do anything for you? This may appear unjust. And maybe it is. The problems may well lie elsewhere outside of the law. In the UK we do not have a reliable press regulator that can reliably hold publishers to account over their lies and attacks. There is complete regulatory capture of the regulation system by the press. The foxes are in charge of the henhouse. Gaining a rebuttal can be exhausting and take years.

In general, and as a principle, bad speech is best countered by more speech. Can this work for HOPE not hate? It may feel unjust. It may feel as if Farage ‘gets away with it again’, but we must remember that libel laws are not there to silence and punish, no matter how tempting that prospect may be.

So, I do wish good luck to Brendan Cox and HnH. I am confident they will be getting the best legal advice and a careful assessment of their claim. This may take a little while and in the meantime I would hope that Farage sees fit to make an apology anyway and to offer some recompense. And also, beyond everything else, it would be good to see broadcasters and publishers think twice about routinely inviting this man who does nothing but spread division and hate.