1The libel law in England (although not necessarily in the United Kingdom as a whole, as Scotland has its own legal system) poses a significant threat to the academic freedom to research, as this article will illustrate from my own experience.
2The law of libel is intended to protect people against scurrilous and unjustified attacks being published against them. In practice, however, it can be used by people with enough money to pay for expensive legal services as a means of intimidating researchers who have a legitimate interest in matters of public concern. The fact that London is an international centre of publishing and broadcasting means that the libel law has an effect on freedom of expression far outside English society itself.
3In the pages that follow I will briefly describe my own experience of being sued under the libel law by a wealthy plaintiff—in this case, Charles Taylor, at that time president of Liberia. The details of the account illustrate the precise nature of the threat to academic freedom that this entails and the advantage that lies with a wealthy plaintiff. In effect, the libel law can easily serve as a mechanism to protect vested interests, in a jurisdiction that does not have recourse to the illiberalism of enacting a press law or other formal constraint on freedom of expression.
4In November 1999, the London publisher C. Hurst & Co. published a book manuscript that I had written on Liberia. Entitled The Mask of Anarchy: The Destruction of Liberia and the Religious Dimension of an African Civil War (Ellis, 1999), this work, although forming a single volume, is divided into two distinct parts: the first section is a chronological account of the Liberian war from 1989 to 1997 that is intended as background to the main subject, which is to be found in the second part of the text. This is an investigation into the nature of the ritualised violence that occurred during the atrocious war that afflicted Liberia during the 1990s.
5Prior to publication, neither I nor the publisher thought that there was much risk of the book attracting legal action, since it was aimed at an academic readership in the first instance and it did not seek to make any sensational accusations about individuals. However, that was to under-estimate the enormous influence of modern media, the nature of England’s libel law, the rashness of Liberia’s then president, Charles Taylor, and, it appears, the greed of some of those in his entourage. Britain is home to a number of publications that specialise in publishing tantalising, and often salacious, information on the private lives of politicians, footballers, TV personalities and other celebrities. The latter sometimes respond by instructing their lawyers to issue a formal complaint of libel, which in the 1980s and 1990s had led to a series of cases in which celebrities claiming to have been libelled demanded huge financial compensation. Since that time libel has become a minor industry, generating handsome incomes for a select group of lawyers. English libel law has acquired the reputation of being among the most draconian in the world and this, connected to London’s role as a media and publishing hub, attracts litigants even from outside the United Kingdom. ‘As the ever-expanding internet continues to shrink global consciousness’, one British newspaper wrote, ‘it seems there is no country too remote to worry about its reputation in London’ (Wilson, 2000). Hollywood’s leading gossip paper recently observed that, ‘[o]ne of these days someone will consider why the country with the world's toughest libel laws also has the most notorious tabloids’.1
6A review of The Mask of Anarchy appeared in the Times newspaper on 2 November 1999, almost immediately after publication. Unusually, however, this article did not appear in the paper’s literary pages but was instead framed as a news story and included in the paper’s news section. Entitled ‘Liberia’s Gruesome Top 20 Killers’, the review was written by one of the paper’s correspondents, Michael Dynes. It picked out some of the more exotic details contained in The Mask of Anarchy, implying that these were its main point of interest. In particular, the Times drew attention to the book’s mention of the consumption of human flesh by President Taylor, Liberia’s leading warlord prior to his election to the presidency of his country in 1997. Accompanying the Times’s article was a large photo of Taylor in traditional dress. Some weeks previously the same newspaper had included Charles Taylor in a prominent feature on the world’s most unsavoury public figures. This was in conformity with the populist tone adopted by the Times after its 1981 purchase by Rupert Murdoch’s News International, following more than a century during which the Times had been considered the august voice of the British establishment.
7Appearing in a mass-circulation newspaper, personalised by the addition of President Taylor’s picture, sensationalised by its headline, the Times article meant trouble, as I realised the moment I saw it.
- 2 Letter from A.K. Akainyah to Stephen Ellis, 19 January 2000.
8Sure enough, a few weeks after the Times had published its review of The Mask of Anarchy, I received a letter dated 17 December 1999 from a London solicitor, one A.K. Akainyah, stating that he was acting on behalf of Charles Taylor, president of Liberia. He informed me that his client was instituting legal proceedings against me before the High Court in London on the grounds that The Mask of Anarchy defamed President Taylor. Akainyah added that the publication had caused great personal distress to his client and his client’s family. In subsequent correspondence, after Akainyah had been challenged to specify what particular aspects of The Mask of Anarchy had caused offence, he identified passages on pages 85 and 264, both of which pertain to reports of Charles Taylor’s participation in rituals involving the use or consumption of human blood or other body parts. ‘Far from being an academic contribution by “a serious and reputable scholar” to the history of the Liberia Civil War’, Akainyah wrote on behalf of his client, ‘these accusation [sic] have been inserted in your book in order to sensationalise it, generate publicity and enhance your financial gain’.2 It was rather surprising that President Taylor had chosen to bring his complaint not via one of the more established London firms of solicitors, but through a firm headed by a Ghanaian expatriate, with no reputation as a specialist in libel issues and an office in one of the city’s more obscure suburbs. This choice was subsequently to acquire a certain significance, as will become apparent.
- 3 afp despatch 18 February 2000.
9On 18 February 2000, Agence France-Presse (afp) reported from Liberia that President Taylor had also initiated a legal case in Liberia itself. This was said to be directed against ‘toutes les personnes suspectées d’avoir fourni des informations à M. Ellis pour la rédaction de son ouvrage’. afp added that Taylor considered the allegations in The Mask of Anarchy to be part of what it called, apparently reporting the president’s own words, a ‘campagne de dénigrement’ that was ‘orchestrée dans les cercles internationaux pour déstabiliser le Libéria’.3 Given Taylor’s murderous record, this was particularly worrying news, as it meant that anyone suspected or accused of being one of my informants could be exposed to the revenge of President Taylor and his various militias and armed forces.
10President Taylor’s solicitor made the same formal complaint not only against myself, as the author of The Mask of Anarchy, but also against the book’s publisher C. Hurst & Co., Times Newspapers Ltd, the editor of the Times newspaper and Michael Dynes, the staff journalist who had written the offending review that had quoted or paraphrased passages in the book that were displeasing to President Taylor. The plaintiff’s decision to initiate legal proceedings against five parties simultaneously was of crucial importance, as it meant that I had powerful (and, more importantly, wealthy) allies on my side. As long as the four other parties chose not to submit to the threats emanating from Charles Taylor by issuing an apology and agreeing to pay damages, all the defendants could count on the support of Times Newspapers Ltd in funding a joint defence against the charge of libel. Times Newspapers is accustomed to defending libel actions and indeed has its own legal department.
11To my relief, Times Newspapers decided to fight the case brought by President Taylor and hired one of London’s top libel solicitors to advise them. What this meant in practice was that the Times was paying the legal bills for a joint defence mounted by all five defendants, but was relying on me to produce the evidence that would be needed to convince a judge of the rightness of our cause. It was at this point that it became apparent that Taylor’s solicitor, A.K. Akainyah, had made a major strategic error in suing five parties simultaneously, since it encouraged them to form a united front in response. The opinion of several lawyers observing the case was that the motive for doing this may have been financial, since each individual plaint generates a separate fee that a client must pay to his solicitor. This was not a mistake that would have been made by a legal firm more experienced than Akainyah & Co. Rather, an experienced libel lawyer would probably have chosen to sue the weakest defendants (myself plus C. Hurst & Co.) on their own in the first instance, with a view to obtaining a retraction and an apology. Armed with such a retraction, the plaintiff could then have sued Times Newspapers with a more realistic expectation of extracting a large sum of money from the latter, which would have been disarmed had the author and publisher of the book withdrawn the offending passages and issued an apology. I was later to learn from one of Charles Taylor’s aides, a former officer in Ghana’s military intelligence service who had also worked as a secret agent for the South African government, that there was a clique of Ghanaian political exiles surrounding Taylor who had drawn his attention to the existence of The Mask of Anarchy and who appear to have played a leading role in persuading the Liberian president to initiate legal proceedings. A London-based Ghanaian journalist sympathetic to Charles Taylor confirmed that the Times article of 2 November 1999 had been spotted on the day of publication by an unnamed Ghanaian journalist—perhaps an allusion to himself—as a possible target for a libel action (Ankomah, 2000). This remark seemed to confirm the role played in the case by a coterie of Ghanaians sympathetic to the Liberian president. I can only assume that someone in this circle knew Akainyah and Co. and had recommended this firm to President Taylor.
12At the time these events were taking place, Charles Taylor was a wealthy man, as he had been enjoying an income estimated at some $100 million per year, derived from plunder and racketeering, for most of the previous decade. Some in Taylor’s entourage may have envisaged the libel suit against me and my co-defendants as a way of extracting some of this money from their patron, Liberia’s head of state.
13One of the most iniquitous aspects of the rules in respect of libel is that they favour the rich. This is a consequence of the presumption in libel law that a defamatory statement is false unless a defendant can prove its truth, meaning that the burden of proof lies on the defendant. In view of the fact that a wealthy plaintiff can pursue an action for a long period of time, causing enormous legal costs that become hard to bear for a defendant who has less money, a libel action can easily come to resemble a game of poker, in which a player with plenty of money can raise the stakes to a level beyond the means of an opponent. By analogy, publishing a statement that displeases a wealthy person, in this case West Africa’s most notorious warlord, can lead an author or publisher living or working in England into very serious legal and financial problems. The result is that an author who is the target of a libel action may think that the best course is to settle the case as quickly as possible, even by retracting a true statement, rather than run the risk of huge legal bills. Whatever the facts of the matter, a writer accused of libel by a wealthy opponent may find himself under intense pressure to admit guilt and apologise, as this may seem preferable to spending vast amounts of money contesting the issue. Possible defences against a charge of libel are to maintain that the allegation is true, that it is fair comment (in other words, a view that any reasonable person might have held), or to assert privilege (in other words, to show that the statement in question was made in Parliament or in a court of law or is a fair report of an allegation made in the public interest).
14Normally speaking, an academic like myself, and a small publishing house such as C. Hurst & Co., could not afford the lawyer’s fees needed for a lengthy battle against a person as wealthy as Charles Taylor. Hence the importance of the fact that President Taylor’s solicitor was also suing Times Newspapers and two of its employees, thereby putting Rupert Murdoch’s company, with all its money, its in-house lawyers and its regular experience of fighting libel actions, in the same camp as C. Hurst & Co. and myself.
15So it was that the five defendants in the case joined together to fight the plaint launched by Charles Taylor on the grounds that what was said in the offending passages of The Mask of Anarchy was true.
16I began collecting documents to support our argument. In early 2000 I travelled with a member of our legal defence team to Guinea, where large numbers of Liberian refugees were living, to interview former associates of Charles Taylor with a view to acquiring further evidence. Before heading to Conakry, I had obtained from Liberians I knew in Europe the names and details of some of the leading Liberian exiles living in Guinea. I was able to locate some of these within a day of arriving in the Guinean capital: such is the effectiveness of West African social networking that within a couple more days they had introduced me to several former bodyguards of Charles Taylor who had subsequently left his employ and moved to Guinea. By these means my legal representative and I succeeded in obtaining sworn statements from a number of Taylor’s former bodyguards who had subsequently broken with him and were now living outside Liberia; several of them signed eye-witness accounts describing how Taylor had eaten the liver or other body-parts of his enemies.
17Armed with these affidavits and a pile of other material, lawyers acting on behalf of the five defendants wrote to the High Court refuting the charges made by Charles Taylor and describing a large number of documents that, we maintained, could prove that the allegations made concerning Charles Taylor in The Mask of Anarchy were true. This was a very detailed defence, based on justification and qualified privilege. In essence, our intention at this stage of legal proceedings was to persuade the High Court judge who would examine the case that our defence was a serious one supported by extensive evidence and that proceedings should therefore continue, with the ultimate aim of holding a trial at which the judge would have to hear all the evidence prior to passing judgement. This would clearly be a massively expensive process: by 7 April 2000, the defence costs already amounted to £52,593.45, and lawyers for the defence estimated that, should the case come to trial, they would incur further legal costs of £897,470, bringing the total legal bill for the defence alone to slightly less than a million pounds.
- 4 Statement by Martin Kramer on behalf of the defendants, 16 May 2000.
18On this basis, the defendants requested the High Court to order the plaintiff to provide security for costs, meaning that he should pay a sum of money to the High Court as a guarantee that, in the event that an eventual judgment were made against the plaintiff obliging him to pay for the costs of the defence, the money to pay these bills would be forthcoming. After all, one of several possible outcomes of an eventual trial was that Charles Taylor would lose his case. The legal basis for this reasoning was that Charles Taylor was not resident in the United Kingdom and was not a person against whom a claim could be enforced under the Brussels Conventions or the Lugano Convention, as defined by section 1(1) of the Civil Jurisdiction and Judgements Act of 1982.4 Being a head of state, President Taylor enjoyed diplomatic immunity and almost certainly also enjoyed immunity against any suit brought against him in Liberia for the recovery of costs we had incurred in London. There was no certainty that President Taylor would be willing to travel to Britain to give evidence at an eventual trial. Lurking in the background of this argument was the fact that the former Chilean dictator, Augusto Pinochet, had recently been obliged to remain in Britain under house arrest for a substantial period, from 1998 to March 2000, after being indicted by a Spanish magistrate making use of the principle of universal jurisdiction. It seems that whoever was advising President Taylor had neglected to inform him at the outset that in a libel trial before an English court the plaintiff may be required to testify in person, meaning that he might have to run the risk of having his movements restricted in the same way as Pinochet.
19Moreover, the international political climate was changing in ways that were not favourable to President Taylor. In the first couple of years after his election to the presidency in 1997, things had gone well for him. West African heads of state had never had any illusions about their new colleague, having learned by experience just what a ruthless and rash operator he was. (One former foreign minister of a West African state described him to me as a ‘voyou’). Liberia’s most important diplomatic partner, the United States government, also knew Taylor well enough, not least because he had been a fugitive from justice since escaping from a us prison in 1985. When Charles Taylor was elected as head of state in July 1997, the us government hoped that Liberia’s new president would be satisfied and would settle into decent obscurity. us diplomats talked down fears that Taylor would further destabilise the region. President Taylor acquired an influential new ally in the person of the Reverend Jesse Jackson, the usa’s leading African-American politician, whom President Bill Clinton in September 1997 appointed to be something called a Special Presidential Envoy for the Promotion of Democracy in Africa. Jackson and Taylor empathised. However, Taylor soon squandered the political capital provided by Washington’s policy of grudging tolerance towards him. He redoubled his support for the Revolutionary United Front of Sierra Leone (ruf), a force that was causing mayhem in Liberia’s western neighbour. In May 2000, the United Kingdom sent troops to Sierra Leone to prevent the ruf from attacking Freetown and to support the United Nations peacekeeping mission in that country, which was close to collapse. Once they had become closely engaged in Sierra Leone, the British authorities came to the realisation that the ruf, with whom they were now at war, was deeply beholden for logistical support to Charles Taylor, who was using the Sierra Leonean rebels as an instrument of regional strategy. Taylor was also a leading supporter of General Robert Guéï, the military ruler of Côte d’Ivoire, Liberia’s neighbour to the east, in the months following the Ivorian coup of Christmas 1999. In September 2000, Charles Taylor was to support a military attack on Guinea, the other of his country’s three neighbours, causing the us government to adopt a far more hostile position towards him.
- 5 A.K. Akainyah to Theodore Goddard, 23 June 2000.
- 6 Ibid.
- 7 Private letter to Stephen Ellis, 28 June 2000; Notification of Decision of Appeal Court on Applicat (...)
20Having a British court at this critical time evoke the possibility that he would have to make a personal appearance in pursuit of his lawsuit against myself and others seems to have cooled Taylor’s enthusiasm. His lawyers moved onto the defensive, claiming that Taylor was not actually as wealthy as was reported in the press and that he did not wish to ‘become embroiled in a complex litigation which would be excessively expensive and would take an inordinate amount of time and effort’.5 Taylor’s lawyers, Akainyah and Co., argued that the Liberian president, being a public figure, had reconciled himself to ‘unwarranted attacks by political opponents’.6 Compounding their adoption of a new strategic posture, President Taylor’s legal representatives made a costly mistake. At a key hearing before an official of the High Court, a lawyer acting on behalf of the Liberian head of state was so poorly prepared that the law officer presiding over the hearing became irritated and, apparently doubting the seriousness of the plaint, ordered Charles Taylor to pay £10,000 to the Court as security for the defendants’ costs. Failure to do so would result in his case being dismissed.7
- 8 Private letter to Stephen Ellis, 23 January 2001.
21On 22 January 2001, a High Court judge, Mr Justice Eady, heard an application from President Taylor’s solicitor urging the Court to reject key parts of the defence case, notably in regard to the plea of justification. Justice Eady was sceptical and refused the request, ordering that Taylor pay into the Court £175,000 in addition to the £10,000 ordered earlier. This, the judge specified, should be done within 28 days. Further action was to be stayed pending this payment.8 It was clear that the judge had found the defendants’ evidence concerning atrocities committed by President Taylor to be substantial, and it seemed that he was unconvinced that Taylor really intended to pursue his case to its logical conclusion in the form of a full trial.
- 9 ‘Liberia ruler drops cannibalism case’, the Guardian, 2 February 2001.
- 10 Ibid.
- 11 Ibid.
- 12 Ibid.
22It was at that point that Charles Taylor abandoned his case, aware that if he pursued it, he would not only have to invest a large amount of money in the form of legal fees and the bond ordered by the High Court, but also that he would eventually have to appear in an English courtroom in person, perhaps making himself vulnerable to arrest on other charges, as had happened to Pinochet. Keen to portray his withdrawal as a tactical retreat, President Taylor considered paying for advertisements to be placed in British newspapers explaining his decision on the grounds that he had been forced to withdraw due to the high cost of pursuing his case.9 He claimed that ‘the English High Court has refused to allow me what can be regarded as a proper opportunity to vindicate my reputation, because it has insisted on a form of proceedings which would be too broad, costly and time consuming’.10 However, the Guardian newspaper opined that Taylor ‘realised that a trial would examine his central role in one of Africa’s most brutal civil wars’.11 The Guardian thought that Taylor’s withdrawal was probably motivated chiefly by his fear of testifying in person, not least when human rights groups were pressing for his arrest and prosecution for crimes against humanity.12
- 13 Private letter to Stephen Ellis, 7 February 2001.
23Shortly after this dramatic series of events, whereby Charles Taylor’s failure to pursue his case in effect amounted to a strategic defeat, I learned that one of Charles Taylor’s former bodyguards whom I had met in Guinea in early 2000 and who had sworn an affidavit in support of the defendants’ case, Ansomana Dukeley, had been murdered at a location close to the Liberian border. Dukeley was an active member of the exiled opposition to Charles Taylor’s government, but it was not clear whether his murder was politically motivated, whether it was related to his willingness to testify against President Taylor, or whether there was some other motive.13 In any event, the news was enough to underline the risks facing the president’s opponents.
- 14 Order by Justice Eady, Court of Justice Queen’s Bench Division, Charles Taylor vs Times Newspapers (...)
24On 23 November 2001, Mr Justice Eady ordered that President Taylor pay into the Court within three weeks a sum of £185,000 as security for the defendants’ costs, in conformity with earlier orders, and that if he failed to do so, the action would be dismissed with Taylor liable to pay the defendants’ costs.14 When Liberia’s head of state failed to meet this deadline, the case was dismissed.
25The reaction of myself and Christopher Hurst, the managing director of C. Hurst & Co. publishing house, as well as that of his colleagues, was one of massive relief after having spent several months under threat of the financial ruin and public humiliation that would have resulted if Charles Taylor’s legal challenge had been successful.
- 15 ‘Mystische Waffen’, p. 206.
26On reflection, it was clear that the Liberian president had been poorly advised. He seems not to have been informed that, if his plaint had been pursued to its logical conclusion in a trial open to members of the public, he would have had to appear in court in person to be cross-examined by a hostile advocate. This is always a daunting prospect, and in this case all the more so as Charles Taylor had been associated with many atrocious episodes during his career as a political-military entrepreneur. His lawyers had adopted a short-term approach that began to show its limitations as soon as Times Newspapers decided to throw its financial resources into a robust legal defence. President Taylor had, moreover, failed to reckon with the publicity that inevitably attends a libel suit by a head of state, especially one in which allegations of cannibalism would be aired in court, that is to say in a legally privileged context where all and sundry could then comment on what was said in court without fear of legal retribution. Furthermore, the mere existence of his plaint attracted press comment far outside the United Kingdom, as when it was reported in the popular German magazine Der Spiegel on 1 May 2000.15 This marked a strategic blunder for a head of state who was an expert in propaganda, as it caused far more people to become aware of the allegations in The Mask of Anarchy than would have otherwise been the case. After all, the book had set out not to study the personality of Charles Taylor, but to examine the historicity of the practices of ritualised violence in evidence during the Liberian war—Charles Taylor’s consumption of the body-parts of selected enemies, in company with members of his inner circle of killers and security officers, had been no more than a passing detail in the argument presented in the text. Meanwhile, The Mask of Anarchy was shortlisted for the annual Herskowits Award of the African Studies Association of the usa for the most outstanding book on Africa published in the previous year.
27Beyond being ill-advised as an exercise in public relations, Charles Taylor’s plaint was flawed for the vital reason that it was based on a lie inasmuch as he had energetically denied any connection with the practices involving consumption of human blood or body-parts, published reports of which had motivated his legal suit. It gradually became fully apparent just how extensive had been the practice of cannibalism during the successive wars in Liberia during the 1990s and into the present century. Such practices were filmed by journalists16 and reported by the Truth and Reconciliation Commission that was established in Liberia after the war’s end.17 Fighters for both Taylor’s and other factions boasted publicly of having eaten their enemies’ hearts.18 Witnesses at Charles Taylor’s trial before the Special Court for Sierra Leone, held in The Hague from 2007 to 2012, gave personal accounts of acts of cannibalism by Taylor,19 the most striking of which was by a former security officer in his employ, one Joseph ‘Zigzag’ Marzah.20
28In 2012, Charles Taylor was sentenced to a 50-year term of imprisonment by the Special Court for Sierra Leone. His subsequent appeal was rejected.
29Charles Taylor’s complaint that he had been defamed by passages in The Mask of Anarchy that had been repeated in a popular newspaper was, like so many allegations of libel, never adjudicated. Quite simply, his plaint lapsed when he failed to respond to the High Court’s order to pay a surety to the Court as a guarantee against future costs. Yet, getting just to this point cost the defence some £150,000 in legal costs alone. The fact that I, the author of the book, and C. Hurst & Co., its publisher, were able to benefit from such expensive legal services was due only to the fact that Times Newspapers was enrolled in our cause. We could not have afforded legal bills on this scale without such a powerful ally, and Charles Taylor may well have won his case by default.
30England’s libel law remains largely unchanged, despite promises of reform. Any wealthy litigant may still use the law to silence an author, irrespective of the accuracy of what that author has written or caused to be published, by the mere threat of legal proceedings that will be ruinously expensive. This has an inhibiting effect on serious authors, including academics but especially investigative journalists, dissuading them from pursuing matters that they think might potentially cause them to be sued by any wealthy person.
31The English libel law continues to be used by the rich to protect themselves from criticism whether justified or not. It is likely that it is not the only corpus of law to be used in this way, although the provisions of the libel law make it particularly useful for a wealthy plaintiff. In December 2013, for example, the Israeli diamond tycoon Beny Steinmetz and three board members of bsg Resources, the mining arm of his family business, issued a formal legal complaint against the London-based anti-corruption organisation Global Witness. Global Witness was served with notification of a law suit seeking damages following alleged breaches of the Data Protection Act over information relating to himself and other claimants. This occurred at a time when Steinmetz was in dispute with Global Witness over allegations of corruption surrounding his business interests in Guinea. At the time of writing, the case remained unsettled, and its merits are not yet clear.
32Generally speaking the libel law is more threatening to journalists than to academic researchers, although it can pose to a threat to anyone who seeks to publish sensitive information, particularly concerning anyone rich enough to pay for expensive lawyers. Due to London’s prominence as a media and publication centre, it poses a real threat to freedom of information in the English-speaking world.