The History of the Times

by Graham Stewart

  Given what had already been said about him in the United States, Loutchansky’s decision to sue The Times for libel was a surprise to some. He claimed it was not about money but about clearing his name. Despite upholding the general ban on his entry into the country, Jack Straw allowed him to come to London on a temporary visa to testify against the newspaper. What followed was a trial of the utmost importance. A standard libel trial would have involved The Times trying to prove justification – in other words that its allegations were true. The problem for The Times, however, was that it did not have the evidence to prove the allegations were true. Like many of those who made allegations involving international money laundering, The Times had to concede that such evidence as might exist was held by authorities – like MI6, the Home Office, British and foreign police investigation departments – which were not in a position to disclose what (if anything) they knew. Thus, The Times opted for a ‘qualified privilege’ defence instead. In doing so, the paper was testing a new precedent in libel law. Historically, press ‘privilege’ from the rigours of British libel law had primarily protected parliamentary and court reporting but its scope had been greatly widened in a landmark ruling made in 1999. This was the so-called ‘Reynolds Defence’ when the House of Lords had ruled in a dispute between the Sunday Times and the former Irish Taoiseach, Albert Reynolds, that a newspaper could print information it could not verify as true if it met ten criteria set out by Lord Nicholls of Birkenhead for responsible journalism where there was a legitimate public interest. In Lord Nicholls’s judgment, qualified privilege was a permissible defence even if there were factual inaccuracies published, if the reporting was in good faith using reliable and impartial sources and reasonable attempts to establish their veracity had been taken.

  The trial of ‘Loutchansky v Times Newspapers’ began on 19 March 2001 in the High Court. The presiding judge was Charles Gray who, in a noted career as a libel barrister, had defended high-profile clients against media accusations, winning record damages for Lord Aldington from Nikolai Tolstoy but unsuccessfully defending Jonathan Aitken against the Guardian. The Times’s counsel was Richard Spearman QC while Desmond Browne QC appeared for the plaintiff. It was the first jury trial on a ‘qualified privilege’ case since the Reynolds verdict. However, the jury’s role was restricted to determining whether they believed Lister’s claims that he had shown proper diligence in compiling his report. It was up to the judge to rule whether the qualified privilege defence was valid.

  Since the publication of the original articles, The Times had been busy collecting information to support the allegations. However, in a decision upheld by the Court of Appeal, Mr Justice Gray declared inadmissible any evidence gathered after the original claims were made. Consequently, the court was denied knowledge of affidavits from the Israeli Interior Ministry opposing the renewal of Loutchansky’s passport and regarding the reasons for the Home Secretary’s ban on his coming to Britain, as well as a communication between the US Department of State and the embassy in Tel Aviv that led to his being denied a US visa, and reports compiled by the police forces of Israel, Austria and Interpol. With Peter Stothard watching from the back of the courtroom, Loutchansky took the stand and implied that his 1983 conviction was a trumped-up charge by the KGB who were concerned at his pro-democracy sentiments and, indeed, that it was his ‘feeling’ that ‘The Times newspaper had somebody behind them in all this action. It’s something to do with the people who stand behind them.’24 His QC clashed repeatedly with Lister, attempting to undermine his journalistic professionalism. Certainly, The Times’s defence would have been stronger if it had provided Loutchansky with a proper forum to reply to the allegations when they were first made. Unfortunately this had not been done. Despite using an internet search engine, Lister had failed to locate Loutchansky’s London or American lawyers nor had an attempt to locate him in Moscow borne fruit. The plaintiff’s counsel also sought to belittle the credibility of Lister’s anonymous sources. An attempt by Lister to assert why they might consider their lives endangered was halted by the judge. By comparison, James Bone, who had a first-class law degree from Cambridge, appeared almost to enjoy being cross-examined by Desmond Browne.

  When the moment came to return a verdict, the jury found generally in favour of Lister’s honesty as a reporter. Of the fifteen questions they were asked, they found on ten counts in his favour, on two counts against and recorded three failures to reach a verdict. Importantly, on the substantive questions of the Interpol officer’s words, and those of the other main informants, Lister’s testimony was upheld. The verdict from the judge proved a different matter. On 27 April, Mr Justice Gray accepted that the claims were ‘very serious’ but that there was ‘no great urgency’ to report what, he asserted in news terms, were ‘low grade’ stories and that The Times did not have a duty to publish. He believed newspapers enjoyed qualified privilege from the laws of libel only when they would be open to legitimate criticism if they failed to publish the contentious information. The Times was also forced to remove from its internet archive the offending articles, the judge taking the view that a website effectively involved constant republication of the libel every time it received a hit. This judgment had huge implications for archive management in the electronic age, creating – in contrast to the printed newspaper – an unlimited timescale of liability.

  The Times immediately made a submission to the Court of Appeal to reverse the decision. In the summation of the Guardian’s editor, Alan Rusbridger, the judge appeared to have concluded, ‘that the subject matter was in the public interest, but that The Times had no duty to report it’.25 In December, the Appeal judges ruled that Mr Justice Gray had applied ‘the wrong test’ on the question of the paper’s duty to publish and sent the case back to him for reconsideration. However, Gray proceeded to restate his original judgment that The Times did not enjoy qualified privilege and threw out its attempt to enter a new plea of justification; he would not permit a new libel trial in which the paper hoped to prove its allegations were true by reference to an Italian police report – Operation Spiderweb. This infuriated the paper, which had in the meantime acquired a 232-page report compiled by the public prosecutor in Bologna into alleged international money laundering that referred to various companies apparently linked to Loutchansky.26

  London had been dubbed ‘the libel capital of the world’ in the 1990s, but newspaper lawyers like The Times’s Alastair Brett looked forward to the new century as one in which the scales of justice would tilt in investigative journalism’s favour. The European Convention’s defence of freedom of expression, written into British law by the 1998 Human Rights Act and the Reynolds judgment the following year, were interpreted as moves in this direction. Mr Justice Gray’s judgment in the case of ‘Loutchansky v Times Newspapers’ suggested otherwise. Furthermore, the judgment that an online archive represented constant re-publication had repercussions for the British media that its American counterparts were spared: in the United States the limitation date was set by the day an article was first transferred to an electronic database or website.27

  Yet the lack of a considerable body of case law meant that there was likely to be much movement in the years ahead. In the case against Loutchansky, The Times had marred its claim to qualified privilege by failing to withhold publication until the accused had been given the opportunity to give a full rebuttal. In this respect, the paper published in haste and repented at leisure. Although it did not reach the courts, an example of a Times journalist successfully guarding his integrity had taken place on 30 January 1999 when the paper’s football correspondent, Matt Dickinson, interviewed the England football coach, Glenn Hoddle. During the course of their talk, Hoddle – who believed in reincarnation – had expressed the opinion that people with disabilities were being punished for sins in a previous life.28 The response was a public uproar and, facing the sack, Hoddle claimed Dickinson had misrepresented his comments and that he would be issuing a writ. Tony Blair even manage
d to get involved, announcing that Hoddle should resign but only if he had been honestly reported. Fortunately, Dickinson’s shorthand skills ensured he had a very full note of what had been said and a BBC tape was produced in which Hoddle could be heard expressing similar views for an interview on Radio Five Live the previous year. Hoddle dropped his threat of legal action and was duly sacked while Dickinson’s scoop was applauded and The Times was vindicated in the treatment of his article. In this there was a lesson that needed to be impressed upon Fleet Street and beyond. Because the Hoddle interview had been conducted using good journalistic practices Dickinson had been able to defend himself and the paper from the threat of legal action. In the Loutchansky case, however, the judge had convinced himself that The Times reporting had fallen short of such standards. Whatever the subsequent development of qualified privilege, the guidelines established by judges and law lords promised to shape the conduct of responsible journalism in the years ahead. The consequences of failing to follow best practice were to be graphically demonstrated when, in 2003, Andrew Gilligan, a reporter for the BBC Radio 4’s Today programme, aired his impression of what he had been told by the Iraqi weapons inspector David Kelly without being able to furnish a comprehensive record of the conversation. The consequences were unfortunate for all concerned.

  VI

  The difficulties experienced by journalists trying to establish the reliability of information in Britain were not as great as those faced by foreign correspondents reporting from the world’s remaining one-party states. Totalitarian governments were content to impart an official line on events (or even deny their existence) to foreign journalists, but this was no guarantee of accuracy. States that retained an iron grip on the supply of information were successful in censoring or banning reputable news agencies, papers and broadcasters from uncovering a truer picture of events. But such tactics failed to crush a subculture of rumour and gossip whose purveyors constantly sought out foreign journalists. The problem was that publishing unverifiable rumours was no more responsible than merely parroting the version of events narrated by State officials. Establishing if the rumours had any basis in fact in countries where reporters were not at liberty to probe at will or where potential witnesses were too frightened to talk on the record tested the resourcefulness of the most seasoned foreign correspondents.

  No greater challenge could be provided than the enclosed world of Communist North Korea. In 1992, posing as a university lecturer, David Watts managed to get into the country on a special tour that featured an odd selection of fellow travellers, including a trade unionist from Bradford who periodically lectured his hosts about the need to make their society more Communist. Viewing the demilitarized zone from the North Korean side was a revelation. A twenty-four-foot high anti-tank wall (not visible from the southern side) ran the width of the country. Attempts by the north to tunnel under it had been thwarted. At another post, fifteen-foot-high loudspeakers blaring out Souza marches and the sound of automatic weapons fire serenaded the North Koreans. Watts was astonished by what he took to be the lack of military preparedness on North Korea’s part. A modern expressway had been constructed from the border to Pyongyang and during the entire journey only four vehicles were spotted on it. There was little sign in the countryside that the world’s most socialist state had provided much public transport: just children wandering barefoot on their way to school with the possibility of a lift from an army lorry. On arrival in Pyongyang, Watts discovered a capital city with great tower blocks, many of which, on closer inspection, appeared to be empty. A 105-storey, pyramid-shaped hotel had been constructed on the suggestion of Kim Il Sung’s heir, Kim Jong Il, but it had never been finished because the shape was useless for installing lifts. Gaining reliable sources of information proved impossible. Watts could only record as the observant tourist he purported to be. He did catch the eightieth-birthday celebrations for the ‘Great Leader’. Most of the foreign dignitaries were from African states bearing gifts. ‘A BBC man proffered a corporation T-shirt,’ Watts noticed. ‘Unsure of its ideological appropriateness, it was accepted only to be returned because it was not properly wrapped.’29

  North Korea’s profile in the news varied according to the level of tension in the demilitarized zone and the evidence that it was acquiring nuclear weapons. China, where a fifth of the world lived, was emerging from its Maoist introversion as a major power through the market reforms of Zhao Ziyang and Deng Xiaoping, and necessitated a continual reporting presence. Had Stothard but known it when he assumed the chair, it was The Times’s reporting of the politics of this part of the world that was to prove one of the most controversial aspect of his editorship. Indeed, it was to tarnish the paper’s reputation across wide sections of the British public and beyond.

  In 1993, The Times appointed two new correspondents in China: James Pringle replaced Cathy Sampson in Beijing and Jonathan Mirsky established himself in Hong Kong. Pringle had been the paper’s stringer in Cambodia and Thailand. He had previously reported China’s affairs during Mao’s Cultural Revolution for Reuters and Newsweek. It was not unusual in one-party states for the securing of journalists’ visas to be a protracted war of attrition and months passed before the Chinese authorities would grant him one, despite approaches to the Chinese Ambassador and press attaché in London who passed the matter onto the Ministry of Foreign Affairs in Beijing which, in turn, complained at the ‘slanderous and uninformed’ tone of some Times editorials.30

  Mild was the manner of Beijing’s unease over Jimmy Pringle compared to the suspicion with which it regarded Jonathan Mirsky. Mirsky was an American academic specializing in Oriental Studies who had studied at Columbia and Cambridge and taught at Dartmouth and Pennsylvania universities before the Vietnam War provoked his decision to quit American shores. Through his friendship with Conor Cruise O’Brien, he had gone to China as a reporter for the Observer. It was while filing for that paper that he witnessed the horror of the Tiananmen Square massacre. He was in the Square close to the portrait of Mao when the soldiers opened fire on the crowd. He witnessed soldiers beating the protestors. An officer shot those forced to the ground. Suddenly he realized the soldiers were fixing upon him. He tried to make clear that he was a journalist and gestured that he was leaving. A soldier swore at him and, turning to his comrades, screamed at them to kill him. Mirsky was grabbed by two of the soldiers while a couple more started beating him. Desperately he tried to hold onto a balustrade, aware that once they had kicked him to the ground he would get a bullet through the skull. At the very moment in which he was making his last efforts to stay upright an Italian vice-consul and his friend, a young Australian reporter, were scurrying across the Square to make good their escape. As they did so they caught sight of the desperate Mirsky, arms flailing. Without pausing to weigh up the danger, the two men turned back to rescue him. The Australian, no more than an acquaintance of Mirsky’s, managed to get a hold of him as he was being pushed down. ‘Come on, Jonathan, let’s go now,’ he said with remarkable coolness and jostled him free. A hail of bullets followed in their path as they hurried away. The Australian, whose name was Robert Thomson, had saved Mirsky’s life. In 2002, he became editor of The Times.31

  Like many who had witnessed the distressing scenes in Tiananmen Square, Mirsky found it difficult to maintain an objective view of the Chinese government he vehemently distrusted. Keen to stay on as a reporter, it was not an easy posting for one determined to explore beyond the explanations provided by the press briefings. He regularly had to navigate round the obstruction and admonishments of his official minder. Rather more ominously, he had to endure unknown people emerging from the shadows on street corners to accuse him of spreading lies and warning him of the consequences before turning away, back into the anonymity of the crowd. Who were these people? How did they know who he was or what his movements were? In particular, his trips to Tibet provoked this form of harassment. His telephone was tapped and his mail opened. In 1991, after he had covered John Major’s
first visit to China, the authorities made it clear they had had enough of Mirsky’s journalism. They threw him out of the country.

  Stothard’s decision to employ such an authentic thorn in the flesh of the Beijing government was a courageous one. It certainly showed no regard for the commercial interests of the proprietor, Rupert Murdoch, who was beginning to invest in what he hoped would be a pan-China satellite television empire – for which he needed Beijing’s approbation. Unabashed, Stothard made Mirsky East Asia editor and, when the latter queried whether there might be a potential clash with Murdoch’s business interest in appeasing the Chinese authorities, Stothard assured him that he was a free agent who could write whatever he liked. That Beijing had refused Mirsky a visa to travel in the country was not an insurmountable problem. With Pringle filing from Beijing, Mirsky could base himself in Hong Kong, which still had four years left as a British colony. With the date of the handover approaching, Hong Kong would be as much a story as what was going on in the Chinese capital. Stothard was an enthusiastic supporter of the new (and last) Governor of the colony, Chris Patten, and his attempts to force through democratic reforms before Hong Kong was handed back to China. That Mirsky shared these sentiments was a further recommendation. Others were also pleased by the appointment. Douglas Hurd, the Foreign Secretary, went so far as to assure Mirsky of his delight that The Times was dispatching someone who he knew could be relied upon.32