Reputation, reputation, reputation! Oh, I have lost my reputation! Cassio
Reputation is an idle and most false imposition, oft got without merit and lost without deserving. You have lost no reputation at all unless you repute yourself such a loser. Iago
Othello, Act 2 Scene 3
During an impassioned discussion on Brexit I heard someone cry,
“I do not want to live in a world where I no longer have the right to lie!”
Most of us who have grown up in a free, liberal, westernised democracy take free speech for granted. We consider it an essential pillar of our freedoms. It’s what distinguishes us from tyrannies and despotic regimes. It is a core British value which shapes our common identity. As a result many in the UK assume that free speech grants us, politicians and the media an absolute right to say what we like, when we like and how we like. This is not exactly true. If we had the absolute right to say absolutely anything and everything we would be allowed to lie, defame, and incite others to commit violence.
I doubt, therefore, that many of us would want to live in a world where we have an absolute freedom of speech that could only protect villains, criminals and con-men from justice. If the law forbids us to lie under oath, to perjure ourselves or to defame a person – why, why, why – then are our politicians and our journalists allowed to blatantly lie, deceive and mis-inform the public without any repercussion? The impact of their lies affects the whole direction of our nation with huge social, economic and cultural impacts on each and everyone of us leading to very serious harm.
Many have been grappling with this very question since the results of the referendum were announced in the early hours of 24 June 2016. Perhaps the best way to think of it is to realise there are “categories” of lies. During the referendum campaign we can pin down two, irrefutable lies, which even Vote Leave and Leave.EU don’t exactly deny were blatant lies. The first lie was to state – across a battle bus no less – that the UK pays EUR 350 million a week to the EU. The second lie was to say unequivocally that Turkey “is” joining the EU.
Yet, in many respects, these brazen, out in the open, stark naked lies are the least important of all the lies told before, during and after the referendum campaign because many voters – both those who voted to remain and those who voted to leave – were aware of the lie.
A far more insidious form of lying – one that is harder to prove but no less important – are lies that defamed the EU.
What Vote Leave and Leave.EU did to brilliant effect – possibly with the help of Russian funding – was to defame the EU by lowering its hitherto rock-solid reputation for delivering stability, peace and prosperity. To recall, for decades the EU had a reputation for being “boring” but “benign”; “bureaucratic” but “stable”. The EU had standing. It was perceived to be trustworthy and dependable – albeit a bit on the dull side. The EU can be compared to the Chartered Accountants seen on every high street the length and breadth of the British Isles. Certified, dull but honourable and necessary for business. For decades the general public in the UK did not give the EU a second thought but if pressed for an opinion would have probably viewed it as a beneficial engine for peace, growth, openness and opportunity.
So why is it that by 23 June 2016 at least 17 million British voters were (and the majority probably still are) absolutely convinced that the EU “shares the same ambitions as Nazi Germany”, that it is “undemocratic”, that it is “corrupt”, that it is “elitist”, “incompetent”, “broken”, “on the verge of collapse” and that by leaving the EU the UK can “take back control” and be free from a the tyranny of a “cabal”?
Why? Because Vote Leave and Leave.EU effectively defamed the EU by insinuating that it was a despotic body of ill intent on the verge of collapse when this was and is categorically not the case.
One legal definition of defamation is to …
“…lower the claimant in the estimation of right-thinking member of society in general …”
Let us, hypothetically speaking, suggest that the EU could bring a claim of defamation against Vote Leave. The claim would read something like this,
“… that the leaders of Vote Leave and Leave.EU did knowingly and maliciously lower the EU in the estimation of right-thinking members of society in general ….”
The big-wigs in both Vote Leave and Leave.EU either knowingly or negligently knew that most of their sweeping rhetoric was untruthful, badly researched and incomplete yet stated them anyway in a bid to chip away at the EU’s integrity. Below are just some examples of the many statements made by leading Brexit politicians and journalists before the referendum. Anyone of these statement could, in a court of law, be proven false and untrue. The language used is laden with innuendo and conspiracy, it is full of suggestion rather than fact and rams home again and again the incorrect message that the EU is undemocratic, elitist and unaccountable. These statements are not valid criticisms based on well sourced facts. They are not fair comment. Rather, they are libellous statements designed to confuse and instil fear before a referendum of national importance in order to unfairly blacken the name of an otherwise reputable institution.
The EU is increasingly anti-democratic …. It is sclerotic, opaque, elitist: different nations bound together by a centralised bureaucracy that ordinary people can neither understand nor vote out, Boris Johnson “When it comes to the single market you don’t need to be in it to win it” The Telegraph 12 June 2016
The EU is ruled by a secretive, unelected commission, whose diktats are backed by a court able to override elected democracies, Daily Mail Comment, “If you believe in Britain, vote Leave. Lies, greedy elites and a divided, dying Europe – why we could have a great future outside a broken EU,” 21 June 2016
The only thing that was holding them (Reid Steel) back … was EU regulation – generated by an inscrutable process involving fat cat lobbyists and fat cat businesses and the governments of other countries, Boris Johnson, “Of course our City Fat Cats love the EU – it’s why they earn so much,” The Telegraph, 15 May 2016
The EU is built to keep power and control with the elites rather than the people, Michael Gove, “EU referendum: Michael Gove explains why Britain should leave the EU” The Telegraph, 20 February 2016
Unelected, unaccountable elites, I’m afraid it’s time to say, ‘You’re fired. We are going to take back control, Michael Gove, Sky News, 3 June 2016
We can take back the billions we give to the EU, the money which is squandered on grand parliamentary buildings and bureaucratic follies, and invest it in science and technology, schools and apprenticeships….the reason the EU’s bureaucrats oppose us leaving is they fear that our success outside will only underline the scale of their failure, Michael Gove, “EU referendum: Michael Gove explains why Britain should leave the EU” The Telegraph, 20 February 2016…..
Far from entrenching democracy, it [the EU] works to frustrate the democratic will of Europe’s peoples while its own structures are unaccountable and anti-democratic…..And that means freeing ourselves from the jurisdiction of the rogue European Court of Justice…..The European Court of Justice is not a normal court, as we in Britain understand and have understood courts for centuries. It is not overseen by independent judges who seek to interpret and enforce laws agreed by a democratically-elected legislature. It is a court with a fundamentally political agenda…., Michael Gove, “Voting to Stay in the EU is the risky option,” Vote Leave, 6th June 2016
When the Eurozone countries vote together to prop up the broken system, they can impose their will and force us to accept laws that are not in our interests …. this has left us dangerously and permanently exposed to being forced to hand over more money and accept damaging new laws. Michael Gove, Boris Johnson, Gisela Stuart“On the risks of Remain,” Vote Leave, 5 June 2016
“Vote Leave on June 23, and give this cabal the kick in the pants they deserve.” Boris Johnson, “Of course our City Fat Cats love the EU – it’s why they earn so much money,” The Telegraph, 15 May 2016
Sadly the European Union and its euro project have become an engine for job destruction and there is no prospect for reform unless Britain votes to leave and forces a new agenda on Europe’s elites. Boris Johnson, “Boris Johnson exclusive: There is only one way to get the change we want – vote to leave the EU,” The Telegraph, 16 March 2016
The EU lacks the networked relationship between great universities, entrepreneurs and venture capital that generate economic breakthroughs…the EU’s whole regulatory structure works against innovation. Michael Gove, Boris Johnson, Gisela Stuart “On the risks of Remain,” Vote Leave, 5 June 2016
“…What I am saying is that everyone knows that Brussels is a deeply corrupt city. Everyone knows that the European Union is a deeply corrupt institution. It cannot even cheat its own internal auditors well enough to hide the fact that its own accounts are dodgy, and every year it has to admit that. That is not a controversial position.”, Dominic Cummings, Oral Evidence to “The Economic and Financial Costs and Benefits of UK membership of the EU”, House of Commons, The Treasury Select Committee, 20 April 2016
The revelation that plans for a European army have been deliberately kept under wraps until after the referendum simply shows the ambition of those who seek a single European state, and the cunning manner in which they aim to achieve their objectives. It is not the democratic will that must prevail, but rather the master plan. Even the amount of advertising allowed on television is decided by Europe, while some rules – for example, those encouraging diesel engines – have poisoned the air and led to premature deaths.Jakob Rees-Mogg, “Yes victory may be final but it will be bloody, say pro-Brexit MP as he vows not to hold a second referendum, The Daily Mail, 29 May 2016
As Ministers in Her Majesty’s Government with degrees from Oxford, we must assume that both Gove and Johnson knew that these statements were false dressed up as considered opinion. Their remarks were not fair comment since they are inaccurate, highly misleading and flawed.
Based on the above it is not unreasonable to suggest that the EU has been defamed by populist British politicians, possibly with funding from the Kremlin. This catastrophic loss of the EU’s reputation led to 17 million British voters voting against their own self interest on 23 June 2016 the disastrous consequences which the UK will suffer from for many years to come.
The flaw in the law
The EU can not, however, bring a claim for damages against anyone in Vote Leave, Leave.EU or any media outlets that published defamatory remarks. The law allows individuals and even companies to protect their reputation but not public bodies and government institutions. Politicians are immune from prosecutions whilst journalists and editors are given free reign to libel public bodies and government institutions by hiding behind freedom of expression.
You may call the law an ass but remember that the law has been shaped to protect freedom of expression and satire – one of the strengths of our democracy and a fundamental principle that distinguishes us from tyrannies. Not unreasonably the law does not want to stifle debate and impose chilling defamation laws on anyone who criticises or disagrees with a public body or the direction of public policy.
“It is of the highest public importance that a democratically elected governmental body, or indeed any governmental body, should be open to uninhibited public criticism. The threat of a civil action for defamation must inevitable have an inhibiting effect on freedom of speech.” Lord Keith, (Derbyshire County Council v Times Newspapers Ltd.  HL at 547)
What the law has not yet done is catch up with the reality of fake news. Our existing libel laws were framed when both politicians and the media themselves had a reputation of integrity to uphold. Until the arrival of free on-line dross, Cambridge Analytica and a Russian strategy of misinformation no one, for a single moment, could have – indeed would have believed – that a serving British politician and a newspaper such as The Times or The Telegraph would wish to undermine their integrity so thoroughly by writing and speaking so many falsehoods during the course of a referendum campaign.
The freedom from prosecution on the basis of free speech granted to both politicians and the media in good faith and for the best of reasons makes Johnson’s, Gove’s, Rees-Mogg’s, Paul Dacre’s, the Barclay Twin’s and Murdoch’s disregard for the truth all the more appalling. For centuries our politicians and our media have respected the implicit understanding that they are free to criticise and satirise public policy and institutions but to never cross the line of deliberately libelling a public body for no good reason other than to win a campaign through deceit.
The gentlemen who exclaimed he did not want to live in world where he no longer had the right to lie was confusing freedom of expression with lying – and who can blame him! In the topsy-turvy world of fake news, social media and memes we can all be forgiven for confusing freedom of expression with the freedom to lie. Freedom of expression and deceit bump up against each other all the time. They are completely separate but threaten to spill over into each other’s territory at the slip of a whisper, the hint of a suggestion or a one-to-one rumour without anyone realising they have invaded each others space.
Germany and France are aware of the damaging nature of spreading fake rumours to lower a public-body’s reputation unfairly and unjustly. They are beginning to introduce laws seeking to prevent abuse of the freedoms granted to the media and to politicians. In the UK we too take freedom of expression seriously but perhaps there is a flaw in the law that allows both politicians, editors and journalists to lie with impunity. It is a matter of great urgency that we in the UK look into this matter carefully and decide how we can protect our cherished freedoms from damaging charlatans.
The sad reality is that if we don’t address these issues now we are at risk of undermining the very freedoms we think we are protecting. Already we see the media and some politicians slipping into the language of fascism to protect and safeguard their crack-pot con. Remainers are accused of being treasonous, political opponents of Brexit are labelled saboteurs, the independent judiciary enemies of the people, university rectors are receiving letters from serving MPs chastising them for harbouring lecturers who do not agree with Brexit. If you win by deceit then you need to use deceitful means to safeguard your con.
Both Merkel and Macron are right to look into this question of fake news as a matter of urgency. Let us hope that the UK is not, yet, so diseased that we can’t have an honest debate about how to protect our freedom of expression from unscrupulous attempts to undermine it.