On being read for libel

There came a moment, as a recent project went through its editorial process, when I realised that I had returned to a place of paranoia and fear, where disaster waits around every corner and everyone is a potential danger. I was back in Lawyerland.

My first visit to this place had been 20 or so years ago when I worked in publishing. I was the editor of a book co-authored by Willie Donaldson, the author of The Henry Root Letters, which included – indeed was entirely comprised of – rather rude and risqué jokes and references to people in public life. A libel report seemed sensible and many hours were spent in expensive discussion with lawyers and the authors. Eventually, the book was cleared for publication. Within days of its appearance, we had received a fierce letter from the feared lawyer Oscar Beuselinck on behalf of Paul Halloran of Private Eye, claiming that a reference to him clearly had a tendency to injure him in his office, professions or trade.

Although I was subsequently a friend of Willie Donaldson, who died in 2005, it has only been while writing his biography over the past year that I have discovered the truth about that distressing incident. The whole thing had been set up by the author. An expert at getting himself into trouble, Willie had been amused by the idea of being taken to court by Private Eye. He had a word with Halloran. Eventually, there was a small out-of-court settlement.

Willie was delighted by this trick and would frequently tell interviewers that he had only been sued three times, by Nigel Dempster, Private Eye and the Duchess of Argyll, but probably not as delighted as the libel lawyers were. Reading the libel reports on his books and then on my biography of him, it occurred to me that Willie had made incomparably more money for m’learned friends than he ever did for himself, or indeed his publishers. In Lawyerland, only one rule applies: the lawyer always wins.

Sex, double-dealing, hypocrisy, drugs, fame and villainy were the subjects of Willie’s books and often the backdrop to his life. His skill was to recount stories from his past and present and, often using real names, mix up fact and fantasy for the comic effect. He had a weakness of signing contracts which conflicted with one another and on one occasion was taken to court for breach of copyright. He was, in other words, a one-man benefit fund for the legal profession.

As his biographer, I have been living up to this tradition. Battles which Willie fought down the years have been revisited in the context of his life. The fact that something has been published several times with impunity is not, it turns out, any kind of defence.

In fact, the libel game has grown a lot tougher in recent years. Authors are now normally required to pay half of libel costs, notably the lawyer’s report, which can make a large hole in any advance. The idea of having to argue a point through a series of emails, with the meter on, can have a significant chilling effect. The temptation to play safe is almost irresistible.

The publisher, meanwhile, has a single priority – not to get sued. With the arrival of “no win, no fee” litigation, media lawyers are happy to take on cases, knowing that most publishers will settle rather fight a ruinously expensive case. The question of privacy under the Human Rights Act is another profitable area of risk and ambiguity.

It all sounds sensible enough but the effect on, say, a biography which involves tarts, drugs and satire can be bizarre. Willie used an invented name for a call-girl with whom he lived, and in the 1970’s wrote four books, three of them published, either about her or by her. When I used the same name, the publisher’s lawyers were worried. Would anyone know who she was? Probably. In that case, I should avoid the invented name – and her real name, of course. In fact, it would be safer if no mention were made of her at all.

Even with the help of the eminently sensible media lawyer Roger Field, the removal of any possible risk from my book raised unexpected questions. If someone was described as having supplied drugs 25 years ago to the social set of a member of the royal family, was it libellous of unnamed people who might be argue that they were once in that set? (Yes). If an unspecified tabloid newspaper is described as having lifted a fictional story and presented as fact, would that be a problem? (Yes) If I confessed to being puzzled by the loose ends to an interviewee’s story, was I libelling him? (Yes).

In vain, I argued that the likelihood of anyone from these groups suing was remote – in fact, like the pseudonymous call-girl, the last thing any of them would want to do would be to draw attention to themselves. Neither did the argument that this level of caution would be an absurdity in the press, radio or TV cut much ice with the publisher’s legal department. Books are for keeps, they said. Books are different.

Perhaps none of this matters but, as with so much in modern publishing, a sense of balance seems to have been lost. A nervous, buttoned-up, safety-first approach is the only one acceptable.

The last word, as usual, goes to the subject of my biography. As I started to research the book, I heard that a fourth name would have to be added to the list of successful Donaldson litigants. A High Court judge, whom Willie had grievously libelled in the assumption that he had died years ago, emerged, alive and affronted, at the age of 101. Lawyers, as I say, always win.

Spring 2007