ITN unbiased news source, Who are you kidding?
On March 15 a London High Court jury found that the story "The Picture that
Fooled the World" published by the independent magazine LM had libelled Independent
Television News (ITN) and two of its journalists. The maximum damages suggested by Justice
Morland were awarded against the magazine's editors, Michael Hume and Helene Guldberg, and
its publishers, Informing (LM) Ltd.
ITN was awarded £75,000, and journalists Penny Marshall and Ian Williams were
awarded £150,000 each. Together with court costs, LM faces a total bill estimated at
£600,000-which will bankrupt the magazine.
The libel verdict against LM has major implications for
democratic rights and press freedom. ITN is a multimillion-pound corporation that
provides news for three of Britain's major TV channels and has millions of viewers. LM has
a circulation of around 10,000-15,000 copies per edition. It began life as Living Marxism,
the journal of the Revolutionary Communist Party. Following the collapse of the Stalinist
regime in the USSR, the organisation proclaimed that the project of establishing socialism
was dead. Three years ago the journal was re-launched as LM by two of its former writers,
Helene Guldberg and Claire Fox, with the slogan that the new magazine would be
"challenging everything".
The libel case concerned LM's publishing of an article by
German freelance journalist Thomas Deichmann in its first edition in February 1997.
The article was based on Deichmann's investigation of an ITN news report shot on August 5,
1992. Marshall and Williams were part of a television crew invited by Bosnian Serb leader
Radovan Karadzic to inspect compounds holding Muslims, in order to refute allegations that
the Serbian authorities had established concentration camps during the Bosnian civil war.
Williams and Marshall visited two camps in northern Bosnia, at Trnopolje and
Omarska. Their footage broadcast from the Trnopolje camp concentrated on a single image of
a Bosnian inmate, Fikret Alic, standing behind barbed wire, his ribs protruding through
his emaciated frame.
ITN won a string of awards for the report, which was
credited as the first proof of Serb-run concentration camps. The picture of Fikret Alic
was shown around the world, and played an important role in justifying Western
intervention in Bosnia. US President George Bush likened it directly to images of the Nazi
death camps.
In 1996, Dutch lawyer Professor Mischa Wladimiroff asked
Deichmann to provide expert testimony on German media coverage of the war in the trial of
Dusko Tadic, a Bosnian Serb accused of war crimes. Deichmann recalled that in looking back
through the media coverage, the ITN image kept reappearing. On closer observation he
noticed that the posts holding up the barbed wire in the photograph were on the side of
the fence where the prisoners were standing, not the outside, as would be expected.
Deichmann went to Bosnia to investigate the Trnopolje camp,
a former school building. His article asserted that there was no barbed wire around the
camp-which he said was a collection centre for refugees and not a prison-but was, in fact, around a small enclosure next to the camp from where the news
team had been filming.
"Whatever the British news team's intentions may have
been, their pictures were seen around the world as the first hard evidence of
concentration camps in Bosnia," he wrote. However, "an
important element of that 'key image' had been produced by camera angles and editing."
Deichmann wrote that Muslim refugees had set up the collection centre in May 1992
on the grounds of a school as a refuge after Serbs took control of Kozarac. He quoted former British Liberal Democratic Party leader Paddy Ashdown-who
visited the camp a few days after Marshall and Williams' news team-from the August 13
Independent newspaper: "They have gathered here because
they had to go somewhere. Their houses have been burnt and their lives threatened. Muslim
extremists pressure the men to join up with the guerrillas, so they have come here for
safety. But on most recent nights the unprotected camp has been raided by Serbian
extremists who beat them, rob them of what little they have left and, it is claimed, rape
the women. Things are better now."
The article was widely published in Europe at the time and is included in the book
NATO in the Balkans: Voices of Opposition, edited by Ramsey Clark and published by the
International Action Center (NY). It is still available on a number of web sites, though,
due to ITN's libel action, it cannot be reproduced in Britain.
ITN threatened LM with legal action, demanding that they
pulp all issues of the February 1997 magazine prior to distribution. LM refused and
issued a press release (also the subject of the libel action) defending their right to
publish. They organised a press conference where they repeated Deichmann's allegations and
secured the support of 150 public figures opposed to ITN's attack on freedom of
speech-including former London Times editor Harold Evans and writers Doris Lessing, Fay
Weldon, William Boyd and Auberon Waugh.
ITN, Marshall and Williams then began libel proceedings. Other British news
sources that had carried the story, such as the Financial Times, published retractions so
as to avoid potentially costly fines.
Much of ITN's legal argument centred on the alleged pro-Serb bias of LM, which,
the media corporation claims, led the magazine to conceal Serbian war crimes. LM deny
this. Writing in the Independent January 11, LM publisher Claire Fox said, "We
published it [Deichmann's article], not to make excuses for atrocities, but to demonstrate
our belief that there was no comparison between the Nazi death camps and what happened in
Bosnia ... which could both distort our view of the conflict in somewhere like the
Balkans, and belittle the true horror of the Nazis' Final Solution."
Britain is renowned as one of the best places in the world
to take out a libel action. Its laws are notoriously biased in favour of wealthy
litigants, offering a better chance of success and higher awards. English libel law
is not subject to constitutional constraints defending free speech; nor is there a
statutory press code. It is directed at the protection of private reputation at the
expense of freedom of expression.
Consequently, the burden is on the defendant, who must prove the truth of his
statement, as opposed to the US and other countries where the plaintiff must prove its
falsity. British law also presupposes that a libel has caused loss (both financial and
personal), and consequently no actual damage need be proven. In addition, the loser
normally pays both sides' legal costs.
Journalists are treated the same as private citizens. The ITN action was
groundbreaking because it is normally the media and journalists who are the target of such
libel actions, not the litigators.
The factual veracity of the Deichmann article was not made an issue in the libel
action. Rather it was the motives that LM had supposedly attributed to ITN and its
journalists-that they had deliberately misled the public through "editing and camera
angles".
In his closing remarks, Justice Morland stated that: "It is the thrust of the
defendants' case that Ian Williams and Penny Marshall must have known and did know that
the men were not caged in behind barbed wire but it was they, with their TV teams, that
were enclosed by the barbed wire fence which surrounded the barn area... Clearly Ian
Williams and Penny Marshall and their TV teams were mistaken in thinking they were not
enclosed by the old barbed wire fence, but does it matter?" (emphasis added).
A spokeswoman for ITN made the same point. "They [the Bosnians] were
prisoners, that was the issue, not the barbed wire," said Nina Bialoguski, ITN's
media relations officer.
The key claim by ITN and the two journalists was that they
were not aware of the barbed wire fence when they shot the footage, and so allegations
that they had deliberately misled were false. ITN's legal team sought to establish that
the camp was in fact a prison and not a collection centre, to prove that their picture
accurately portrayed its function. Its legal team produced witnesses who testified
that Muslims were held against their will at the camp, and that many were beaten, tortured
and underfed. In total, ITN fielded 18 witnesses, 17 who worked in TV broadcasting.
LM was extended no such license to prove its case. Justice Morland ruled out all
of LM's witnesses on the grounds that none were present at the time of the report in 1992.
(The magazine had subpoenaed BBC's World Affairs Editor John Simpson and Phillip
Knightley, author of The First Casualty and an authority on press censorship during war.) Only Deichmann and Hume were permitted to take the stand. Even then, in
his summation, Justice Morland said he was not going to refer to anything they had
presented. Their testimony was also deemed irrelevant, as they had not been present in
1992.
Any objective observer reading this record of biased
judicial treatment would be forced to conclude that the trial's verdict was shaped by
political hostility to LM, rather than the merits of ITN's case, which was entirely framed
as an attack on LM's politics.
ITN's lawyers claimed that LM had run their story so as to defend the only
remaining "communist" bastion-Serbia-following the collapse of the USSR. In
court, ITN lawyer Tom Shields, QC, said Hume was "intent on adopting a hostile stance
to journalists of the West and Western powers". As Hume himself pointed out in court,
he is a Western journalist. What was really being objected to, he said, was any expression
of political hostility to journalism that echoed the stance of the Western governments.
LM had sought to bring out this aspect of ITN's libel action. BBC's World Affairs
Editor John Simpson, whom they had attempted to call as a witness, has spoken out against
what he calls "journalism of attachment" in connection with ITN's libel action
against LM. In the Sunday Telegraph of September 14, 1997 he
condemned reporters who go to war zones "not to tell us who is winning or who is
behind it all", but "which side is good and which is evil". Simpson was subjected to a vicious witch-hunt for reporting the impact of
NATO's bombing of Belgrade last year.
One of the foremost defenders of ITN's decision to prosecute LM was Guardian
journalist Ed Vulliamy, who was with Marshall and Williams during their 1992 trip.
Nevertheless, in his first article on their visit, published on August 7 1992, he stated
that "Trnopolje cannot be called a 'concentration camp' and is nowhere as sinister as
Omarska: it is very grim, something between a civilian prison and a transit camp". He
interviewed Muslims and stated that "some people have fled voluntarily to Trnopolje
simply to avoid the raging battles in the villages around".
But following LM's defeat in the High Court he wrote, "ITN reported the truth
when, in August 1992, it revealed the gulag of horrific concentration camps run by the
Serbs for their Muslims and Croatian quarry in Bosnia." He told APBnews.com, "To
split hairs over the exact position of the fence is to miss the full picture.... The moral
and political stakes are high. Who shouldn't do what over libel is a side-show."
What were the political stakes in the ITN libel action,
which outweighed all considerations of factual accuracy and free speech?
A verdict against LM was crucial, and not just for the reputation of ITN and its
journalists. ITN's pictures of Fikrit Alic have become so closely
identified with official justifications of NATO's intervention against Serbia, that to
throw doubt about the former inevitably raises questions concerning the latter. The same day the ITN libel action opened, last February 28, a War Crimes Tribunal at the Hague began
hearing the case against three Bosnian Serbs accused of committing torture, rape and
murder at the Omarska prison camp. The picture of Fikrit Alic
was presented in evidence, despite having been shot at Trnopolje. Opening the trial, the
Australian prosecutor Grant Niemann said, "the images of skeletal malnutrition . . .
sent shock waves around the world".
The implications of the verdict against LM go far beyond restrictions on the
ability to make critical comment about NATO's actions in the Balkans, Iraq and elsewhere.
Aside from upholding the factual accuracy of their article, LM's defence was based upon
"fair comment". This defence means that the comment is one that a fair-minded
person could make based on the facts proved. It is regarded as an important legal bulwark
safeguarding writers of editorials and commentary pieces. However, under English law,
there is no absolute protection for certain comments or statements of opinion and, if
malice can be proven on the part of the defendant, the plea of fair comment can be
defeated.
In this case, malice has been defined as any questioning of
the political motivations of either the major news corporations or, by extension, Western
governments. Coverage by the big business media of every major war in the last
decade has been characterised by an embrace of the rationale advanced by Britain, the US
and other NATO powers. During NATO's Kosovo campaign last year, the
WSWS noted, "It is impossible to obtain an objective picture of what is happening in
Kosovo-the extent of Serb violence, the role of the KLA in attacking Kosovan Serbs, the
destructive impact of NATO bombing on the Kosovars-under conditions in which official and
media reports are dictated by the political and military aims of the US and its KLA
allies."
This characterisation of the relationship between government and the mass media
has been amply confirmed by the ITN action against LM. Not only does
ITN defend its right to present a partisan account of NATO's war, while portraying itself as an unbiased news source, it has also given notice that anyone questioning this will be subjected
to crushing financial sanctions by the British legal system.
Moreover, based on the ruling against LM, a critique of
biased or inaccurate news coverage of an industrial dispute, anti-immigrant legislation or
any other social policy could suffer the same fate. Conversely, by wielding its
economic might to crush LM, ITN has demonstrated that the big business media are at
liberty to attribute the basest motives to their critics with impunity.
And they tell us there is "free" press in the
west, who are they kidding? Themselves?
