There’s been a bit of a wailing and a gnashing of teeth on the interwebs today about the libel decision handed down yesterday by Justice Tugendhat which found against the Telegraph and Lynn Barber, over a review Barber wrote in 2008 of Dr Sarah Thornton’s book ‘Seven Days in the Art World’. Possibly because of how the case is being reported – for example, the BBC’s report begins with the line “An author has won £65,000 in libel damages over a “spiteful” book review that was written by a journalist for a broadsheet newspaper” – lots of writers appear under the impression that the libel damages (and £65,000 isn’t really that much for a libel case) have been awarded because the judge found that the review was just too nasty.
Obviously, this would be profoundly worrying for anybody in the business of reviewing things, where spitefulness is sometimes, regretfully, a necessary literary tool. And because the judgment itself is a) very long, and b) mostly quite boring, very few people seem to have read the full thing – which would reveal that their concerns are unfounded. In fact, the judgment appears to be entirely fair, and moreover it casts the actions of Lynn Barber and (to a lesser extent) the Telegraph in a very unflattering light.
Mostly to save me trying to make the same point over and over again on Twitter, here’s the three major misconceptions about the case:
1) A review being “spiteful” now places you at risk of a libel action
No, it doesn’t. The libel decision has very little to do with the tone of Barber’s piece, and a lot to do with the fact that it made several highly defamatory – and entirely false – allegations about Dr. Thornton’s work. Tugendhat J is crystal clear about this in paragraph 76 (highlighting mine):
“A reviewer is entitled to be spiteful, so long as she is honest, but if she is spiteful, the court may more readily conclude that misstatements of fact are not honest, since spite or ill will is a motive for dishonesty.”
Good news, reviewers! You can carry on being as spiteful and vitriolic and snarky and pissy as you ever were. The one caveat there (as we’ll see in a bit) is that if you do make some entirely false claims in your review, and if the tone of your piece is extremely spiteful, you might find it a bit harder to claim in court that you made an honest mistake, and that you weren’t attempting to damage the reputation of the person whose work you’re reviewing.
2) All Lynn Barber is guilty of is being forgetful
Nope. Not only does the judge conclude that it’s unlikely Lynn Barber was actually forgetful, but it doesn’t really matter: the crucial question isn’t whether she forgot a key fact, but that she apparently didn’t care (and never bothered to check) whether what she wrote was true or not. Which, when you’re making an extremely damaging claim, is really not on.
The libel claim, which made up for the majority of the damages (there was also a secondary claim of malicious falsehood), was over Barber’s claim that Thornton had falsely said she had interviewed Barber for the book (about her experiences of being a Turner Prize judge). As it happens, Thornton had interviewed Barber for the book; Barber’s claim that she hadn’t (“I gave her an interview? Surely I would have noticed?”) was completely untrue.
In her defence, Barber said she’d simply forgotten that the interview had happened. Indeed, she noted that she’s written before about how poor her memory is, for example in her memoir ‘An Education’. That would seem to be a reasonable thing to say in her defence – but Tugendhat considered this, and found it a poor excuse on two eminently reasonable grounds.
First (and treading carefully here) he found reason to doubt that Barber’s memory was quite as bad as she made out. Not only did he find that her descriptions of her poor memory in An Education to actually be examples of perfectly ordinary memory (in parargraph 92 of the judgment he goes through her examples one by one, dismissing each with a deliciously blunt “That is normal”), but he specifically suggests that she only introduces the idea of poor memory as “a literary device to warn the reader that the memoir does not purport to be completely accurate”.
Moreover, Tugendhat suggests that Barber’s supposed bad memory appears, on the basis of her evidence, to be selective at best – for example, being able to remember clearly an email in the afternoon of one day that supports her case, but not another email that same evening that hinders her case (paragraphs 84 and 85).
In summation, the judge writes: “Ms Barber wrote in her witness statement in a number of places that she has a notoriously bad memory. In reading the documents and in listening to her oral evidence, I did not see any sign that that was true. On the contrary, her memory of events in 2006, as recounted in the Review, and her memory of events when she gave evidence, seemed to me to be normal or in some respect better than might be expected. I do not accept the accuracy of her statement that her memory is bad.“
And regardless, he secondly notes that it makes very little difference to the judgment whether her memory really is that bad – because if she knew she had a bad memory, then relying on her memory to make as damaging and defamatory claim as sayng that a book’s author lied without checking if it was true is enough to turn the case against her. The defence admitted that Barber had in fact made a mention of having done the interview in her diary (paragraph 28); it would have been the work of minutes to check the facts. Tugendhat writes (paragraph 127): “It is with some hesitation that I reached the conclusion that Ms Barber knew the interview allegation was false at the time she wrote the Review. I have had no hesitation in reaching the alternative conclusion that (if she did not know it was false) she was reckless, that is indifferent as to whether it was true or false.“
3) It was an honest mistake
On the basis of the judgment… er, not so much. In fact, the judgment really is quite brutal about Lynn Barber’s actions, and also shows the Telegraph’s response to an entirely reasonable complaint in a fairly bad light. As noted, Tugendhat repeatedly says that Barber was “indifferent” to whether the claims she had made were true or false (paragraphs 121 through to 127). He says (paragraph 106) that “I found nothing in her demeanour which suggested to me that she cared one way or another whether the interview allegation was true or false. She manifested no sign of caring at all.” That’s a pretty damning indictment of any journalist – a profession in which, you’d hope, caring about whether things are true would be a pretty central character trait.
Furthermore, Barber didn’t respond to emails from Thornton, shortly after the review was published, pointing out the mistake (paragraphs 35, 102); the Telegraph took four months to remove the review from their website, and a further six months to issue an apology (paragraph 187), none of which suggests much in the way of good faith in their approach to the issue. Then the Telegraph, in their first full response to Dr Thornton’s complaints, chose to use the the quite baffling (to me) argument that the 35-40 minute interview hadn’t actually been an interview, because it hadn’t yielded much useful information (paragraph 55, given shortest possible shrift in paragraphs 94 and 95).
I think that for most journalists this will come as quite a surprise: the idea that slightly rubbish interviews retrospectively stop having been interviews at all. I mean, I was quite excited when I got to interview Matt Smith – he’s The Doctor, for goodness sake – even if it was just a 15 minute phoner where he straight-batted everything right back at me. Turns out that, according to the Telegraph’s legal team, I never interviewed him at all, which is definitley some sort of wibbly-wobbly timey-wimey shenanigans about which I’m not very happy.
It gets worse for Barber – in papragraph 96, Tugendhat bluntly states that, in her evidence, “she told what is certainly a lie.” As he notes a while later (parargraph 107) “it is a very serious matter for a judge to find that a witness has lied” – but he’s in no doubt that she did, based on what she wrote in her original review.
In summary: the judge found that Lynn Barber lied in her evidence, didn’t care whether the allegations she made were true or false (when it was easy for her to have checked and found out that they were false), and both she and the Telegraph were slow and obstructive in their response to Dr Thornton’s complaint. The only area where the ‘spitefulness’ (or otherwise) of the review comes into play is that it’s indicative of Barber’s “state of mind” (see paragraph 76, the only time in the entire judgment where spite is mentioned) when writing it; it’s a factor that harms her particular defence, not a cause of action in itself. Spite as a journalistic method lives to fight another day.
While many journalists may be worried about this judgment based on some stray headlines, in actual fact it’s a result that all good journalists should be able to support – even though many of us, myself included, have enjoyed and admired Lynn Barber’s work for many years. Because ultimately it’s about the basics of journalism, our version of “first, do no harm” – “First, don’t say something that isn’t true.”