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A sporting chance for victims of Lawfare

When newspapers reported that Robert Dee, a British tennis player was “the worst professional tennis player in the world” after the sportsman had set a record for  54 straight-set losses on the international professional circuit he threatened to sue for libel.

Like dominoes, iconic mastheads of British journalism toppled, issuing apologies and retractions. The Daily Mail wrote a cheque for £15,000; the Daily Express coughed up £5,000, and the BBC £12,500.

Easy money. Swapping racquet for racket, and losing streak for windfall, the cheeky Dee crowed about his new-found success and is even posting copies of the incoming cheques on his website.

But then The Daily Telegraph refused to back down and the issue went to court.

The newspaper won. They report:

As a result, the case went before a High Court judge who has now confirmed that the evidence supplied by the newspaper was justified in describing his as the world’s worst….

Mrs Justice Sharp ruled: “The incontestably true facts are that the Claimant [Robert Dee] did lose 54 matches in a row in straight sets in his first three years on the world ranking ITF / ATP tournaments on the international professional tennis circuit, and that this was the worst ever run.”

She continued that there was “no additional obligation” on the paper to prove the Dee “is objectively the worst professional tennis player in the world, in terms of his playing skills”.

That characterisation was “simply a consequence of his unprecedented record of defeats”, she stated.

The Telegraph also made an important point about the economics of lawfare:

While weightier libel cases have made the news in recent months, the leal (sic) battle demonstrates how newspapers can be held to ransom by litigants spurred on by lawyers promising to work on a “no win, no fee” basis. They are known in the trade as conditional fee arrangements.

Keith Mathieson, a solicitor who was acting for Reuters when it was threatened by Dee’s solicitors, told the House of Commons’ Culture, Media and Sport Select Committee in 2008 that the news agency felt “it had really no option but to settle because it was faced with potential costs of trial for this comparatively unimportant libel case of £1.2 million.”

Reuters was asked to pay Dee’s costs of £250,000, compared with its own legal costs of £31,000.

The law as it stands holds the the media in particular – and this includes bloggers – at the mercy of the vindictive, the mendacious and the delusional.

So, it is no surprise then that nine times out of ten, the newspaper will settle – whatever the merits of the case. The more modest the means of the lawfare warrior, the more chance the paper will settle.  The chances of recovering their legal costs are so remote that a “cut your losses, grit your teeth and pay up” approach is cheaper than standing on principle.

It is therefore very important to understand the mechanism the Dee case illustrates and illuminates.

It explains why the Islamists keep getting payouts. Because of a string of similar cases, the effect has been that newspapers are often reluctant to report on the activities of a number of British Islamist groups.

Now just think – if the BNP were to pursue a similar strategy, they would have nothing but neutral or even good press!

If you behave badly somebody will report on it. And that gives you an opportunity to launch a case. The worse your behaviour, the greater an advantage in lawfare terms you have, for the more colourful the ‘libelous’ adjectives used to describe it are likely to be.

For the sake of the free flow of information, the exchange of justifiable criticism and of freedom of expression – all ingredients of a healthy democratic society - the law must be urgently overhauled.