It is testament to the chilling effect of libel law on public discussion that I feel nervous about the sentences I’m about to write. The libel ruling against Katie Hopkins is obscene. The punishment of her to the tune of hundreds of thousands of pounds for making a mistake on Twitter is disgusting. To punish an individual under England’s foul, antiquated libel laws is more objectionable than anything that individual could have said. This case should repel anyone who believes in liberty.
This is the case of Jack Monroe, food blogger and the only working-class person in Britain the Guardian likes, suing Katie Hopkins, a foghorn made flesh. The details of the case are so brain-fryingly petty that I’m embarrassed to recount them. But needs must.
In May 2015 Hopkins asked Monroe in a tweet if she had ‘scrawled on any [war] memorials recently’. Monroe has never scrawled on a war memorial. Hopkins had mixed her up with New Statesman columnist Laurie Penny, who did once say it was okay that protesters against austerity wrote ‘F**k Tory scum’ on a war memorial. Realising her mistake, Hopkins deleted the tweet a few hours later. She followed it up with a tweet asking if someone could explain the difference between Monroe and Penny. Monroe fired off a legal letter and then, get this, Hopkins retracted her tweet. On 1 June 2015 she tweeted: ‘@MsJackMonroe I was confused about identity. I got it wrong.’
So Hopkins makes a mistake, deletes and retracts it, and yet two years later she’s found guilty of defamation and ordered to pay damages and costs that some estimate will be close to £300,000. What’s going on? It seems to hinge on Hopkins’ failure to say sorry. That was one of Monroe’s demands pre-trial. Monroe has since tweeted to those of us ‘wanging on about free speech’ that ‘“Sorry” would have been free speech. Like literally, free.’ So Hopkins has been severely financially punished for failing to demonstrate sufficient contrition? What century is this?
That someone can be made to suffer profound financial hardship for making a mistake that she later retracted should worry anyone who believes in free speech. Hopkins intimated something that was untrue, yes. People shouldn’t do that. But the fact is, sometimes they do. Especially on Twitter, that hotbed of hyperbole.
With zero self- or historical awareness, Monroe’s cheerleaders say the ruling against Hopkins is a victory for a plucky underdog against a Daily Mail tyrant. Monroe says access to libel law must be extended beyond the filthy rich, because ‘if it’s inaccessible to the poor, then it’s neither radical nor revolutionary’. Stop this. You’re embarrassing yourselves. To use England’s libel laws is the precise opposite of revolutionary. It’s a deeply conservative, cowardly thing to do.
England’s libel laws are among the nastiest in the world. Over the centuries they were used to cut off the ears of those who criticised the church and flog those who published unlicensed pamphlets (‘seditious libel’). Bishops used them to silence publications. Saudi plutocrats have used them against American publishers. Anti-Semite David Irving used them to try to silence that great warrior against Holocaust denial, Deborah Lipstadt. In joining these ranks, Monroe has utterly forfeited her underdog status.
Some US courts refuse to recognise English libel rulings. In 1997, the US Maryland State Appeals Court was asked to enforce a ruling against an American citizen. It said no. Pointing to our libel law’s then twisting of the burden of proof, so that the accused had to prove his innocence, and to its massive weighting in favour of the usually rich person who sues, the court said: ‘[T]he principles of English libel law fail to measure up to basic human-rights standards and are repugnant…’ This is right. And the reforms of 2013, with the Defamation Act, have done little to improve the situation.
In the US, they recognise free speech must have the ‘breathing space’ of mistake. Consider the landmark 1964 Supreme Court ruling in New York Times vs Sullivan. The Committee to Defend Martin Luther King was sued by the Montgomery Police over statements it made in the NYT: it said King had been arrested seven times, when he’d only been arrested four times. The police won. But the Supreme Court overturned the ruling and made this majestic statement: ‘[E]rroneous statement is inevitable in free debate, and… it must be protected if the freedoms of expression are to have the “breathing space” that they need to survive.’ Yes. Those cheering Monroe’s victory: would you have backed the Montgomery police against the Committee to Defend Martin Luther King? After all, the committee was wrong.
Liberals have humiliated themselves over this trial. They’ve allowed their hatred of Hopkins to override their commitment to free debate, with all its inevitable mistakes and misspeaking. No, being defamed isn’t nice. I’ve had my fair share. Most recently it’s been brought to my attention that, following the Hopkins ruling, in a bid to test my opposition to libel laws, someone on Twitter called me a convicted paedophile. That’s a foul lie. But you know what would be more foul? My crushing of this lie with repugnant, backward, archaic laws that were used to punish many of my radical heroes: John Lilburne, Thomas Paine, Deborah Lipstadt. I prefer to take the grown-up approach and use speech, not brute law, to tell you it’s a lie. Because as that 1964 Supreme Court ruling reminded us: ‘Sunlight is the most powerful of all disinfectants.’