Opinion: “Counting the Cost of Libel Reform” – Zoe Margolis

Libel reform is overdue, but my case showed me limiting the percentage of costs lawyers receive would be a step backward

On 7 March 2010, I wrote a comment piece for the Independent on Sunday. Coinciding with the publication of my second book, Girl With a One Track Mind: Exposed, my article argued that sexism and stigma are still prevalent in how female sexuality is portrayed in the media, and that these old-fashioned stereotypes need to be challenged.

I was stunned, therefore, that the newspaper went to print describing me as a prostitute, heading my article with the title: “I was a hooker, but became an agony aunt.” This undermined not only the main point of my piece, but also fundamentally damaged my reputation and credibility: both my books and my blog focus on creating a clear distinction between the expression of female sexual desire for pleasure and the male-centred fantasy of the sex industry.

It was devastating: within moments of the article going live, news alerts on my name were aligning my writing, and my career, with sex work. Horrifyingly, the article was automatically syndicated via RSS feed scrapers to websites – made worse by the fact that the URL of the article also contained the libel – and within a short while, it had been spread all over the world.

I attempted immediate damage control, leaving numerous voicemail messages with the newspaper’s night editor, requesting that the article and URL were deleted; none of my calls were responded to. In desperation, I turned to Twitter, expressing my horror and hurt; thousands of people retweeted my comments, similarly outraged. I was offered advice, both practical and legal: clear your name, do it quickly, and make it as public as possible. By the following morning, I had enlisted the law firm Simons, Muirhead & Burton; they represented the Freedom of information (FOI) journalist Heather Brooke, so I felt I could trust them.

Because my writing career originated from the web it was incredibly upsetting that Google search results – one’s online reputation – were now filled with untruths about me. So, although the newspaper printed a small retraction a week later, I needed to ensure that my name was publicly – and in as widespread a way as possible – cleared, so I decided to pursue a libel claim against them.

The libel process is terrifying. Each step of the way I was reminded of the risk (of losing) and the costs (ditto) of libel action. Every case-related call and email I received filled me with anxiety; I was sleepless and stressed for the entire duration of the legal proceedings. I’m lucky it was resolved within three months. If it had gone to a trial it might have lasted 18 months or more. I cannot imagine how upsetting that must be.

Last Friday, a statement in open court was read out in front of Mr Justice Eady in court 13 of the Royal Courts of Justice. It was finally official: the newspaper had defamed me, admitted liability and agreed to pay me damages in an out-of-court settlement. I pressed for a statement in court to ensure the verdict was on public record. The media picked up on this, and it was covered by TV news, radio, newspapers and the internet. Best of all, if you now enter my name into Google, the libel has slipped down the search results, replaced with news articles and facts.

This is the outcome I sought, and it would not have been possible had I not pursued a libel claim.

There is much debate at present about how UK libel laws need to be shaken up. Lord Lester recently proposed a private members’ bill with many radical amendments; I approve of the majority of these. But after my own experience of suing a national newspaper there is one law I now believe should remain intact: not limiting the percentages of costs lawyers receive as a premium – to balance the risk (eg losing) they take on – which are added to their fees when they win a case on a conditional fee agreement (CFA) (“no win, no fee”) basis.

Libel is prohibitively expensive – and this obviously needs to change – so if you’re of limited financial means you’ll have no ability to pursue a claim without a CFA. I was lucky that my situation was clear-cut, the newspaper admitted it libelled me, and I have a reputation in the media as an established writer and commentator, so the risk in my case was minimal. Because of this, my lawyers agreed to represent me on a CFA basis; there is no way I could have afforded to pursue legal action otherwise: it could have cost me hundreds of thousands of pounds.

But if you are, say, a minimum-wage shop assistant or a factory worker, and a newspaper prints something seriously defamatory about you (which you then have to prove has damaged you) and CFA win fees are restricted to only 10%, as has been recommended (but thankfully thrown out by MPs), then your hopes of fighting to clear your name are minimal: with the potential of earning nothing from it, I suspect few lawyers will be willing to take the massive risk of embarking on a lengthy and costly libel case.

Libel reform is needed – our laws are archaic and nonsensical and freedom of expression is vitally important. But if reform means big media have nothing to fear because people cannot afford to bring them to justice, then clearly it’s a step in the wrong direction.

Zoe Margolis is a writer and journalist. She is a frequent contributor to The Guardian and The Observer, amongst many other publications, and a regular guest on Sky News. Her 2006 book, based on her award-winning blog, Girl With A One Track Mind, is an international bestseller, translated into sixteen languages. Her new book, Girl With A One Track Mind: Exposed is published by Pan Macmillan in March 2010.

This piece was originally published on the Guardian “Comment is Free” site and is reproduced with permission and thanks