I said it on Twitter but I’ll say it here. The relief for a stupid book review in which someone says something that is not only evaluatively stupid but actually empirically wrong is to say so. It’s not a 65,000 pound libel judgment. I’m sorry, but Sarah Thorton has committed an act of violence against the academy which granted her degrees and against the literate world of her practice. Lynn Barber committed exaggeration, misstatement and a nasty seasoning of prevarication on top of it in her negative review of Thorton’s book. Barber’s reward should be humiliation, intense disagreement, and having to admit the truth. If we had a court that compelled that, rather than expected it of anyone purporting to be an intellectual, I might be down for that.
Barring that, the real upshot of this should be than any writer who publishes in the UK should think again. And anyone reviewing or commenting or footnoting or otherwise using writers who publish in the UK should think once more beyond that.
I share your concerns but here is a partial defense of Thornton:
1) Barber made allegations of academic fraud against Thornton that were simply false: most seriously, that Thornton had falsely claimed to have interviewed Barber for her book. In fact, Thornton had interviewed Barber. There was no tribunal other than a civil court to which Thornton could have gone that could authoritatively declared the truth.
2) In that sense, Barber is at fault three times over here: once for making the false allegation in the first place, a second time for not admitting the truth once called on it, and a third time for not admitting the truth once Thornton had filed an action. It is unfortunate that the case went to judgment but that is not entirely on Thornton. It could have been avoided.
3) Justice Tugendhat, the new senior judge for media cases on the High Court, is generally a friend of free and open intellectual discourse. His judgment — which is worth reading — notes: “The interview allegation does not relate merely to professional practice. It is an attack on Dr Thornton’s honesty. I accept Dr Thornton’s view that there could hardly be more serious an allegation to make against someone in her profession. … The malice that I have found on the part of Ms Barber is a serious aggravating factor. And the manner in which her complaint was dealt by her, and by the Telegraph generally, is a further aggravating factor. In ordinary language she was fobbed off.” (¶¶ 182, 186)
4) There are important differences in libel law between the UK and the US but I do not think those differences are implicated here. If I reviewed an academic book in the New York Times and asserted that I knew that the author’s claims to have conducted certain interviews were false, and that author sued me in the Supreme Court for New York County at 60 Centre Street in Manhattan, the justices of that court would not toss the suit on the ground that I have a First Amendment right to make false statements of fact in my book reviews.
Ok. So you think saying something factually incorrect about the honesty of an author is a 65,000 pound offense? That’s the issue here, the magnitude of the award. It’s so important to prevent someone prevaricating in a book review that we should stick that kind of price tag on it? The kind of price tag that’s meant to say, “Be so very very sure of what you say that you’ve got no chance of attracting this kind of penalty?” Because the upshot is, who on earth would ever write a book review again? I don’t care if I’m sure I’m right, I wouldn’t. Or I’d write one that held tightly to the boring, safe rhetorical standards that prevail in academic journals.
£65,000 is about $106,000, which I am guessing is a year or two of salary for a journalist like Thornton. That doesn’t strike me as way off-base.
Keep in mind that this was not simply a negative review, or a review that expresses skepticism of the author’s methods: this reviewer falsely asserted that she had personal knowledge of the author’s fraudulent conduct. That has always been a sufficient basis for a lawsuit, in the US or the UK. Opinion is protected; lies are not.
By way of hypothetical, suppose I reviewed a book by one of your colleagues in the New York Times Book Review, and wrote the following statement — the latter part of which I personally knew to be absolutely false:
“The only valuable part of the book is chapter 2, and I happen to know that Prof. Doe plagiarized that chapter from a graduate student whom Doe subsequently caused to be dismissed from a Ph.D. program on false pretenses.”
Assume further that I refused to retract the statement. Prof. Doe spends a few years getting disinvited from panels and having people whisper about her at conferences. Her submissions to professional journals are passed over. Finally, Doe is able to clear her name by suing me: the court declares that I was telling a malicious lie. How much would be fair compensation — not punishment, compensation — for the personal and professional distress that Doe suffered? If the figure were $100,000, would you think that, all things considered, Doe had received a windfall?
I honestly think an accusation of plagiarism and misconduct as you state it is a bigger deal than “she didn’t interview me as she said she did”, especially if the plagiarism accusation was followed by the years of consequences that you state. But a strong legal judgment that compels an author to publically retract or recant a false statement, I’m all for that. Still, it may be that I’m overreacting to this case, but UK libel judgments are granted far too readily and at disproportionate scales. Combine that with the use of super-injunctions and the like and I honestly think the UK is something of a “rogue state” in relationship to publishing and free speech. (Particularly when you consider what hasn’t been restrained or suppressed, e.g., phone hacking and so on.)
I don’t disagree in general with regard to free speech in the UK, although my sense is that things are getting better over there. My point is mainly that the result in this particular case doesn’t seem all that far off from what might have happened in the US.
It’s hard to tell how comparable to my Prof. Doe hypothetical is to what happened to Thornton. The legal prose style strongly favors understatement, the UK style even more than the US, and therefore a practiced ear — i.e., not mine — is required to get a sense of whether the judge, who actually heard the witness testimony, is unusually outraged by the facts.
If I am reading the opinion correctly, Thornton contacted Barber and the newspaper immediately after the book review ran, and pointed out that she had interviewed Barber and had four pages of interview notes to prove it. After some delay, the newspaper responded that Barber didn’t consider their conversation to have met the journalistic standard for an interview (!), and that there would be no retraction. That seems pretty outrageous. It is unclear to me what if any particular damage Thornton suffered as a result of that episode, but I can imagine that a person who had been the subject of an unretracted public accusation of that kind would find it hard to get paying work as a journalist.
In any event I agree that the fewer of these sorts of cases actually go to court, the better.
I’m no fan of British libel law, which practically defines the term “chilling effect.”
(On the other hand, “rogue state” is extremely strong language. Motes and beams, and all that. What if we shifted the conversation to the influence of large corporations on the intellectual property regime in the US.)
I’m no lawyer, but I skimmed the judgement, and there are some salient points that Wheen’s Slate/FT piece does not make clear. (To be fair, he did link to it, enabling me to look at it):
-Wheen never mentions the whole Turner Prize background to all this, which is clearly relevant to Barber’s possible motivation for lying. Granted, he can assume that his FT readers would already know that. But on the other hand, at the end he claims that Barber has no possible motive for malice, which seems daft to this non-lawyer.
– According to Thornton, Barber lied twice in the piece. 1) No interview of Barber. 2) Thornton had (allegedly) given all her interviewees copy approval. 1) is the basis of libel charge. 2) is a separate charge of malicious falsehood.
(No idea what the distinction between the two is, although I’d guess that it might be because 1) is something that Barber should know to be incorrect, while 2) could be based on false information from others that she didn’t care to verify.)
£50,000 is for 1); £15,000 is for 2). The way Wheen describes it makes it seem as if the £15,000 is for some sort of aggravating factor of “malice.” Which it isn’t, unless (not a lawyer and only skimmed this!) I missed something.
– My understanding is that even in Britain, a prompt and full apology and correction goes a long way. At any rate, this is how, historically, Private Eye has gotten away with it. Unless I missed it, the Telegraph did nothing for months after Thornton wrote a letter.
Then – only when Thornton began legal proceedings – the Telegraph offered a partial apology: they would retract 1), but on 2) they would only say that Thornton and Barber’s versions of events differ. Thornton refused to take that. deal, and – assuming that Thornton’s facts are correct, and as far as I could tell that’s not in doubt – that seems fair enough.
-Barber is a celebrity and a powerful person in the British print (and other) media. (Alkali’s point is better than s/he knows. I’d be amazed if £65,000 wasn’t a sum that Barber could afford out of the film rights to An Education alone.) This – speculating here – goes a long way towards explaining why the Telegraph was reluctant to act. Wheen is another famous journalist (of a somewhat different sort) and there was more than a whiff of in-group solidarity.
On the other hand, Thornton is only marginally an academic. She’s a former academic and freelance journalist – the book in question started life as a piece for the New Yorker. To be fair, Thornton seems to trade on her academic credentials in the manner that some freelance writers do, and to some extent straddles the gap.
But Barber’s review looks to me a very powerful journalist beating up on a much less powerful journalist – for having the temerity to offer a version of controversial events in which Barber was involved that Barber didn’t like. (And the controversy was one that Barber stirred up in the first place!)
Given Barber’s long history of interviews that border on hit pieces, making very nasty “inferences” about the intimate psychology of her subjects, I find this a distasteful way to behave, and the legitimate purpose of libel law is to protect the weaker party from being abused by the person with a larger megaphone.
N.B. claiming that Thornton a) makes up interviews and b) betrays her interviewees’ trust by pretending to grant them copy approval could be very damaging to the ability of a freelance journalist to make a living.
Missed that Alkali had made the point about Thornton’s salary, not Barber’s. Sorry.
But, obviously, I agree with him/her about the importance of the Telegraph’s reluctance to correct the record.
Not to keep posting, but of course it’s the Telegraph that has to pay the £65,000 – I’d somehow gotten it into my head that Thornton had sued Barber.
Thanks, those are useful details. I’d gotten it into my head that this was a judgment against Barber as well. I think this shifts my own intemperate reaction somewhat. Blog first repent in leisure, I guess.
I’ve since then taken the time to read through the judgement (which is fascinating: http://www.bailii.org/ew/cases/EWHC/QB/2011/1884.html) and I should probably, in the spirit of all this, correct a couple of my mistaken impressions above.
1) The paper did eventually print an apology for and retraction of the first inaccuracy, and a correction of the second (without an apology), although it took an awfully long time before it did so.
2) The copy approval charge is damaging because granting copy approval is a breach of respectable journalistic practice (which I should have realized) not because Thornton had allegedly pretended to grant it and not done so.
I’m very glad to have read this judgement, because I’ll be able to point to it if a student asks me what practical use it is to pay attention to the intertextual presence of classical authors in modern texts (92).