Libel Reform and Wayne Rooney?

On 27 May 2010 Conservative blogger Iain Dale’s company Biteback published a biography of Wayne Rooney, with the title Rooney’s Gold (available from Amazon).  This is a biography of the England footballer by journalist John Sweeney.  It is said to concentrate on the people surrounding Rooney rather than on his footballing career.  It appears that concerns about libel claims by his former agent, Paul Stretford, led to Random House deciding not to publish the book in 2007.  It is now being brought out just in time for the World Cup.

But interesting though the doings of footballers are to readers of this blog, we are writing about this because of the “libel reform” perspective which has been brought to this important publishing event.   This is because, as  Mr Dale complained on his blog, at some point after the publication was announced

“Schillings, Rooney’s lawyers, got involved. We had several letters demanding to see a copy of the manuscript. We refused. We assured them that the book was not the same book as the one they thought it was and that we, as a responsible publisher had taken every possible step to ensure that their client’s rights would not be infringed”

It seems to us that, so far, there can be no criticism on either side.  Schillings were obviously entitled to try and protect their client’s interests by asking to see a copy of the book.  Mr Dale, for his part, was perfectly entitled to refuse.

Schillings’ client clearly remained unhappy and according to Mr Dale:

“But between the book going to print and it being published Schillings tried another tack. They wrote to Waterstone’s and W H Smith threatening them that if they sold the book they would be liable for damages if they carried through with their threat to injunct us and sue for damages”.

This does not quite make sense.  Mr Dale appears to be saying that Schillings warned the booksellers that about their potential liability for damages if proceeding were brought against the publishers.   It is not clear where the “threats” come from as, according to Mr Dale no proceedings seem to have been “threatened” against anyone.   It seems highly unlikely that Schillings would have “threatened” to seek an injunction preventing publication because, as everyone knows, the courts almost never grant interim libel injunctions and, in any event, on Mr Dale’s account they did not know what the book contained (which means that an injunction would be unavailable in any event, see British Data Management plc v Boxer Commercial Removals plc [1996] 3 All ER 707).

It appears that Waterstones decided, in the end, that they would stock the book – after being offered an indemnity by Mr Dale’s company, but that W H Smith decided not to stock it.  All very good publicity for the book – “the book they tried to ban” is much more exciting than just another football biography.

However, having told this story Mr Dale continues with a non-sequitur:

“Our libel laws are allowing the likes of Schillings to threaten, bully and intimidate authors and publishers into abandoning perfectly legitimate books for fear of their whole company’s existence coming under threat. This cannot be right and any reform of the libel laws must surely encompass this aspect of the law.”

It is difficult to understand what “aspect of the law” Mr Dale is referring to.  He surely cannot be criticising the fact that the law allows solicitors to complain that their client’s rights might be infringed by a book which a publisher is planning.  No presently proposed reform of the libel laws would make any difference to this.   Such complaints may lead publishers to abandon “perfectly legitimate books”, in other cases they made lead publishers to abandon or revise inaccurate and misleading books.  It all depends on the facts of the case.

The connection of this story to “libel reform” is, on analysis, non-existent.   There is no criticism of Mr Dale who is doubtless concerned to ensure that the the book is not defamatory and understandably does not like receiving solicitors’ letters.  He also has a book to sell.  It is, however, concerning that this non-story has been picked up by the media as an illustration of the need for libel reform.

For example, Afua Hirsch has a piece on her excellent “Guardian” blog entitled “Wayne Rooney’s Missing Book” – with the sub-heading  “A new biography on Wayne Rooney is the latest victim of libel law”.  She repeats the story from Mr Dale’s blog, explaining how W H Smith will not be stocking the book.  However, she links this to Lord Lester’s Defamation Bill (which would have no impact whatever on cases of this kind).   She adds

“Schillings so far have not gone before the courts to get an injunction on the book – something they are perfectly entitled to do to protect their client’s reputation. Instead – and this is the real issue with libel – they have used the threat of potential proceedings to frighten the stages in the chain that lead to a book being published”.

There are two points here.  First, Schillings’ client most certainly could not have “got an injunction on the book” – as we’ve already said there is no prospect whatever of such an injunction being obtained.  There is no way in which Schillings could “go before the courts” before the book was published.  Secondly, as far as we know, Schillings have not actually threatened anyone with proceedings – they have simply drawn W H Smith’s attention to its potential liability.

How is this a “real issue with libel”?  It is something that a person who believes that they may be the subject matter of a defamatory publication is plainly entitled to do.  Indeed, the well established principles of what the Americans call “journalistic ethics” require defamatory allegations to be put to the subject in advance to give them a chance to respond.  The response may well be: it’s untrue and if you publish I will sue.  This is all perfectly sensible and happens on a regular basis.  A journalist (or publisher) who is confident of the truth of the story will go ahead and published, one who has doubts may not.

Unless the libel laws are to be reformed by being abolished – so that anyone can publish anything – any potential publisher is always going to be subject to warnings or threats from some that they might defame.  This point is made by one commentator on Afua Hirsch’s blog.  She responds by saying

“But whether there is actually a valid libel claim in this case hasn’t been tested because – and this is my point – the fear of a claim, rather than any attempt to prove that it is libellous, has led to it being withdrawn from the high street”.

Well, we don’t actually know whether W H Smith refused to stock the book because of “fear” or because they believed that its contents were defamatory but yes, the validity of the libel claim has not been tested.  It cannot be tested until long after publication.  Mr Rooney cannot “attempt to prove it is libellous” until after publication when his reputation may already have been damaged.

Someone who believes that their rights may be infringed must be entitled to warn the publisher that if this happens action will be taken.  No reform of the libel law has suggested any other alternative.   The story of Rooney’s Gold is a story about selling a footballer biography, not one about libel reform.