Defending defamation

The Defamation Act came into force at the beginning of the year. Here Hardeep Singh asks two individuals who defended claims under the previous regime if anything has changed and what they might do differently.

The Government states the Defamation Act 2013, which came into force on 1 January, will give “clearer and better protection for people publically expressing their opinions”.

Justice minister Shailesh Vara said: “The introduction of these new measures will make it harder for wealthy people or companies to bully or silence those who may have fairly criticised them or their products.” The Libel Reform Campaign described the new law as “a new dawn.”

How the new rules fare in the real world and if the Act delivers what ministers promise remains to be seen.

Here freedom of speech campaigner Hardeep Singh speaks to cardiologist Dr. Peter Wilmshurst, known as the godfather of all medical whistleblowers,  and lawyer and anti-corruption activist Sarah Hermitage, who were both defendants of defamation claims pursued against them by wealthy litigants.

Wilmshurst was sued by NMT Medical, a US company manufacturing medical devices, in London over comments he made to the press questioning the findings of a clinical trial of one of their products. The four-year battle only ended when NMT went into liquidation in 2011.

Hermitage was sued by wealthy Tanzanian businessman Reginald Mengi, over comments on her blog and in two emails which, Mengi claimed to be false and defamatory of him. Mr Justice Bean threw out the case in 2012.

What aspects of the Defamation Act would be helpful given your experience?

Wilmshurst: “I guess that if, when I was sued, the law were as it is now, the thing that might have been most helpful for me would have been the need for NMT to show financial damage resulting from what I said.”

Hermitage: “I am not sure any. The Act and most media attention focuses on publications by academics and scientists and not people like me i.e. the normal man on the street.”

How effective will the Act be in tackling trivial claims?

Wilmshurst: “I am not sure whether the act will prevent trivial claims, although I hope it does. I think what determines whether someone can sue you is how much money they can throw at their lawyers to make your life difficult.”

Hermitage: “In my view, the new serious harm threshold will not necessarily deter the wealthy determined to sue.”

What issues remain for the ordinary person defending a claim?

Wilmshurst: “The big issue for ordinary people is costs and that was not addressed in the reforms. It may even get more difficult with the new caps proposed for conditional fee agreements.”

Hermitage: “Costs of course. Defending a Libel action is impossible for most and for many, results in the loss of their home and life savings which in turn impacts on their families.

“A normal person’s assets would not come close to the finance required to defend a libel trial. This is unfair. I was able to secure a defendant contingency fee agreement for representation by Carter Ruck consultant Andrew Stephenson and 5RB’s James Price and Jonathan Barnes but such agreements are rare and becoming more so.”

What one piece of advice would you give someone who faces a defamation claim?

Wilmshurst: “I would tell them how costly it is, even if they win, so they must decide for themselves whether they want to fight and are able to do so. For me, if faced with this again, I guess it would depend how important the issue was. If it were unimportant, it would be wise to back down. However, if there is an important moral principle or lives might be affected by backing down, I would fight it again.”

Hermitage: “This is a difficult question as all cases are different. I could not even advice compromise. Reginald Mengi stated his pre-action costs to be £298,000, whilst mine were £29,000, so compromise for me and many is simply not an option.

“Perhaps my advice would be, do what you have to do to secure a legal team that believes in you, acts and commits. Above all, if you are certain that what you have said is true, believe in yourself. It’s a tough road ahead.”

The Defamation Act

• The Defamation Act 2013 contains a hurdle for claimants “the serious harm” test. Prior to this defendants had the full “burden of proof.” Businesses have to now show “serious financial loss.”
• There is a single publication rule: especially helpful to online publishers, the limitation period for a claim is a year from first publication; no longer each time an article is downloaded, which made the possibility of action against online publishers indefinite.
• The Act has a clause to tackle ‘libel tourism’, ensuring that England and Wales is the most appropriate jurisdiction to hear claims.
• Peer reviewed scientific and academic journals (electronic or otherwise) have been extended the defence of privilege

This interview originally appeared in The Lawyer and is reproduced with permission and thanks

SAS Collusion in Operation Bluestar: Do British Sikhs Face an Identity Crisis?

There is an identity crisis developing amongst Britain’s 423,000 strong Sikh communities, after revelations that Margaret Thatcher’s government aided and abetted Indira Gandhi’s 1984 massacre of Sikhs in their holiest shrine, the Golden Temple. Headlines like “Britain 'backstabbed' Sikhs by advising India on 1984 Golden Temple raid”, “India Golden Temple: UK investigates 'SAS link' to attack” and “Margaret Thatcher and the Golden Temple: will British Sikhs ever vote Tory again?” suggest 2014 will mark a period of deep reflection and soul searching for those who prior to these revelations, had happily identified themselves as British.

2014 marks the 30^th anniversary of those slain in the Golden Temple and the Delhi anti-Sikh pogroms, which erupted following Indira Gandhi’s assassination, an act of retribution by her Sikh bodyguards, in response to the Indian army assault on the Golden Temple, codenamed Operation Bluestar. It was designed to flush out Sikh militants, taking place on the martyrdom day of Guru Arjun, Sikhism’s fifth Guru, an occasion when thousands of pilgrims were worshipping at the shrine.

The White Paper published by the Indian government, listed the casualties at 493. However, Mark Tully and Satish Jacob, in their book Amritsar Mrs Gandhi’s Last Battle suggest the figure leave 1,600 unaccounted for, based on conservative estimates of pilgrims in Amritsar. The surviving victims and families of Bluestar and the Delhi anti-Sikh pogroms have since been fighting for justice, with little sign of success. Congress party politicians, who led criminal mobs in Delhi marking Sikh households via electoral registers, inciting murder, rape and mayhem against innocent Sikhs, walk free men despite 10 inquiries. Amnesty have referred to the episode in India’s history as a ‘national disgrace.’ On the 18^th of June 1984, Indarjit Singh (Now Lord Singh of Wimbledon) in a Guardian article titled “Gandhi - Speak That Cloaks the Murderous Truth” wrote:

“The massacre in Amritsar of perhaps as many as 2,000 mostly unarmed and innocent Sikh men, women, and children - "terrorists" - easily outdoes in barbarity and outrage the 1919 shooting at Jallianwala Bagh where 379 people were killed by General Dyer. The killings by General Dyer, were in an open park, the slaughter at the Golden Temple was in the holiest of holy Sikh shrines.”

Scottish anthropologist, Dr Joyce J.M Pettigrew in her book The Sikhs of Punjab: Unheard Voices of State and Guerilla Violence, described the motives behind Bluestar:

“The army went into Darbar Sahib [the Golden Temple complex] not to eliminate a political figure or a political movement but to suppress the culture of a people, to attack their heart, to strike a blow at their spirit and self-confidence.’

Eyewitnesses, like Ranbir Kaur, a Schoolteacher, saw the murder of 150 people, who had their hands tied behind their back, with their turbans. Bluestar is forever etched in the psyche of Sikhs around the globe.

Journalist Phil Miller published the revelations of the SAS-India link on his blog Stop Deportations. The papers released under the 30-year rule, indicate Thatcher’s government gave approval for the SAS to advise India on plans “for the removal of Sikh dissidents from the Golden Temple.” The correspondence was typed four months prior to the assault; indicating storming of the Temple was not a last resort as maintained by Indian authorities, but a premeditated military operation. It was revealed an SAS officer had visited India and drew up a plan, which was approved by Mrs Gandhi. Notably, letters released reveal the government was worried about “increased tension in the Indian community here, particularly if knowledge of SAS involvement became public.” Miller told a Sikh television channel further documents would be released later this year.

Now the cat’s out of the bag, a number of MPs have called for full disclosure. An Early Day Motion on Amritsar has been signed by 23 MP’s and the Prime Minister immediately asked the Cabinet Office to open an inquiry, which is scheduled to report imminently. In a letter to MP Tom Watson last week, the Cabinet secretary, Sir Jeremy Heywood confirms, “my findings will be made public". Transparency and nothing short of the full truth will go some way in assuaging the sense of disbelief amongst British Sikhs. What was Britain’s level of involvement in making Sikhism’s holiest shrine into a battlefield? Was this anything to do with the Westland helicopter deal as suggested during Prime Minister’s questions?Does UK PLC take a precedent over loyalty to the Crown and human rights? These are just some of the very many questions, being asked by Mr. Singh and Mrs. Kaur in homes, gurdwaras and workplaces up and down the country.

Last week Slough MP Fiona Mactaggart revealed her predecessor John Watts was informed by the government soon after the 84 massacre, that the UK did not have any discussion with India on the matter. Mactaggart, who has a significant number of Sikhs in her East Berkshire constituency said:

“I want an explanation of the reply to my predecessor as MP for Slough which looks as if it is untrue. It is critical to the functioning of parliamentary democracy that MPs are told the truth.”

This year Sikhs will be also joining the nation in commemorating the centenary of the First World War, where they served disproportionately for the British Indian Army. The community is proud of the sacrifice of their forefathers and their contribution to Britain. 20% of the British Indian army was made up of Sikhs, although they formed only 2% of India’s population. From the period of the famous Sepoy Mutiny, through to the battlefields of the Great Wars and in peacetime standing guard at the gates of Buckingham Palace, Sikhs have consistently proven loyal servants to the Crown, earning 14 Victoria Crosses. The Sikh soldier, with his neatly tied turban, beard and pristine military uniform has been romanticized in films like the English Patient. In the last two World Wars, 83,005 turbaned Sikhs were killed and 109,045 wounded. In modern Britain, Sikhs are reported to have the highest home ownership amongst faith groupsand in spite of increased racism post 9/11, have continued to progress in many fields from politics, media, sports, the legal profession, medicine and healthcare to name a few. They are very much part of the integrated cultural mosaic of our country.

Once the facts of Sir Jeremy Heywood’s inquiry are made public, it’s possible that further evidence of complicity may be uncovered. Opposition Politicians have called for a statement in the House of Commons and Sikh groups are pushing for a full independent inquiry. Some anticipate the government will give a half-hearted apology and touch the issue into the long grass, lets hope not. Whatever the outcome, it would be befitting of the Prime Minister to give Sikhs in Britain and across the world an unreserved apology. More than 60 years after Sikhs gave their lives for Britain ensuring the collapse of the Third Reich and putting an end to Nazi Germany, they will be questioning what it means to be British. If it means recognising the truth, taking the moral high ground on human rights and justice, whilst holding those in power accountable for their actions, then it’s not a difficult decision to make.