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November 27, 2011

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Cian

The latest LRB has yet another missive from him, which I failed to read to the end (you thought the first letter was pompous. Well you should see the second).

http://www.lrb.co.uk/v33/n23/letters

It does however prompt this response from Mishra:
Asked for proof of the ‘recent research’ that has ‘demolished’ Kenneth Pomeranz’s The Great Divergence, he comes up with the curriculum vitae of a Chinese academic nearly as well connected as he is. However, some readers of Civilisation may still want to see the actual paper that apparently singlehandedly discredits a major work of scholarship.

Cian

Jesus, he's really upset. What a tit. It sounds like he really might sue - clearly the LRB are considering it as a real possibility.

Given that Mishra didn't accuse him of racism, and given that law suits over book reviews always seem to backfire badly on the person bringing suit, I can't really see this working out for Ferguson. Particularly as in the US they despise our libel laws, and tend to look askance at people bringing law suits to shut down 'free speech'.

Cian

And this is a link from Noah smith commenting on another Ferguson piece (via Brad deLong):

http://noahpinionblog.blogspot.com/2011/10/niall-ferguson-does-not-know-what.html

He pretty strongly implies that Ferguson is a racist, and its kind of hard to disagree with his reading. Maybe Ferguson simply doesn't know?

Richard J

Given that Mishra didn't accuse him of racism, and given that law suits over book reviews always seem to backfire badly on the person bringing suit, I can't really see this working out for Ferguson

I dunno, I think Richard Evans has a point about Mishra over-reaching, TBH, though I take the wider point.

Incidentally, the last libel case over a book review went very badly for Lynn Barber, the reviewer, who was absolutely torn to shreds in the judgement.

Chris Brooke

Where does Evans say PM's been over-reaching? All I've seen from him are these two tweets:

*** Niall Ferguson says he enjoys provoking the Left. Why is he so thin-skinned when the boot's on the other foot?

First Figes, now Ferguson. From Orlandogate to the LRB, why do right-wing historians react to personal criticism with libel threats? ***

Richard J

Odd, could have sworn I recalled him saying it, but you're right, it must have been someone else.

CMcM

There appears to be a difference in PM's attitude to the prospect of legal action between his quote in the Guardian article and his words in response to Ferguson in the LRB letters column:

In the Guardian:
"Contacted by email, Mishra declined to be interviewed and said that he wanted to "confine" his response to Ferguson to the letters pages of the LRB."

In the LRB:

It says something about the political culture of our age that Ferguson has got away with this disgraced worldview for as long as he has. Certainly, it now needs to be scrutinised in places other than the letters page of the LRB."

Which rather raises the question - which statement came first, chronologically?

Perhaps Ferguson could get Morrissey's lawyer if the NME case is over in time? just a thought....


Cian

I think Richard Evans has a point about Mishra over-reaching

How is he overreaching?

chris y

Perhaps LRB should offer in settlement a regular feature of an exchange between Ferguson and Mishra. In a box on the inside back cover, next to the snarky personals.

I'm delighted to see that the Pepper Spray thread has been spammed by a company selling pepper spray. I for one welcome our new virtual overlords...

MatthewM

Niall Ferguson or Mohammed Saeed al-Sahhaf?

"[X] is now in full and ignominious retreat."

"Exposed, [X] now retreats..."

"[X is] retreating on all fronts. [X's] effort is a subject of laughter throughout the world."

Answers on the LRB letters page http://www.lrb.co.uk/v33/n23/letters

belle le triste

re the apparent difference between "confine response ... to the letters pages of the LRB" and "needs to be scrutinised in places other than the letters page of the LRB" -- I took this to mean that he, PM, plans to continue the debate at the LRB, but others should be taking up the torch elsewhere...

nick s

"is now in full and ignominious retreat" is a hoary old tactic, and a hallmark of a cock.

Can't they just have a fucking duel with Gladiators-style giant drumsticks? I'd buy a ticket.

Barry Freed

Can't they just have a fucking duel with Gladiators-style giant drumsticks? I'd buy a ticket.

No, I'd much rather this. I haven't had this much fun reading a spat like this since "L'affaire Derrida" and the Heidegger and Nazism controversy with Thomas Sheehan in the letters section of the NYRB back in the spring of '93. It was delicious.

(fellow B&Ters, if I've missed any good ones please fill me in).

Madam Miaow

Well, this is what I think of de Niall.
http://madammiaow.blogspot.com/2011/03/working-for-clampdown-niall-fergusons.html

Niall and Morrissey, now suing the NME over accusations of racism ("Chinese are a sub-species". Mmm, my favourite kinda guys.

CMcM

Ah, yes that might sense - thanks belle.

I can't help noticing that, in his first LRB letter, Fergie (as I'm sure no one has ever called him) claims Mishra made 'insinuations' of racism, whilst in both the latest LRB letter and the Guardian piece it has become a full blown 'allegation'.

These are different things - but I'm torn between believing this is just a blowhard ramping up the rhetoric and a man who finds that the second word better fits the specific technology that is the 'Western killer-app' of the Libel Courts

chris y

Morrissey's been well known as a racist for ever. I remember Paul Weller having a go at him about it must have been ten years ago at least. I don't see how he could pretend to have a case.

But Ferguson could well sue in the end. His American public is probably more sensitive to accusations of racism, and that's where the dosh is.

Cian

His American public however would be unimpressed by:
a) Him using the British libel courts
b) What they'd see as an attack on free speech

I think he's be a much diminished figure over there if he really went through with it. I'd really rather he didn't. I like the LRB, and I'm not sure they can afford the court costs.

Chris Brooke

I like the LRB, and I'm not sure they can afford the court costs.

Isn't Wilmers supposed to be fantastically rich?

Dan Hardie

Richard J: 'Incidentally, the last libel case over a book review went very badly for Lynn Barber, the reviewer, who was absolutely torn to shreds in the judgement.'

But that was because she stated something as a fact that was defamatory, and also untrue- thus, as any journalist's law course tells you, making a libellous statement. (Barber said that the author of the book she was reviewing had claimed to have interviewed Barber- but, said Barber, this was untrue. Whereupon the author produced a tape-recording of her one hour conversation with, er, Lynn Barber. One of Barber's ex-colleagues said after the case that he liked her but that 'dappy' was far too kind a description.)

Barber's contemptuous opinion of the author was held to be evidence that she had been motivated by malice. But the expression of opinion cannot be held to be libellous in itself. I would have thought that Mishra is very much in the clear on this one.

Btw, I attended one Ferguson lecture when I was at Oxford: I was appalled by his shallowness, and never went back.

Phil

the Heidegger and Nazism controversy with Thomas Sheehan

I think I may have seen the tail-end of that some years later in the LRB. The parting shot was a full-length column by Richard Rorty which demonstrated that Heidegger was not essentially a Nazi, by the unusual method of writing the life-story of an alternative Heidegger who never worked under NSDAP auspices but still wrote Being and Time. I remember talking about this with a friend who was working on a doctorate in philosophy while working for the Palestine Solidarity Campaign. He was particularly taken with the ultimate destiny Rorty laid on for his Bizarro-world Heidegger: he became a Zionist and emigrated to Israel. Good Heidegger!

Dan Hardie

Meanwhile, ten hours ago on Twitter, David Aaronovitch said the following to Daniel Davies: '@dsquareddigest Oh yes, people "like me". Whereas people "like you" were open to there really being a Jewish world conspiracy, yes?'

What a total cunt. Surprising, actually, because he's been perhaps the least nasty of all the Decents.

Also, good move to have taken myself off Twitter, so that my day isn't taken up with reading this kind of dreck on a minute-by-minute basis.

Dan Hardie

'Meanwhile, ten hours ago' is of course the most atrocious solecism. Time for bed.

Cian

Isn't Wilmers supposed to be fantastically rich?

Having just done a bit of digging, yes she would seem to be.

Phil

Aaro was an utter dick on Twitter yesterday. I waded in, using my standard technique of extending the maximum of interpretive charity for as long as humanly possible if not longer, and got absolutely nowhere. I mean, it's not exactly a degree-level argument - "you've just smeared somebody as an anti-semite for having different views on conspiracy theory from you; if that was deliberate it was contemptible, and if [set InterpretiveCharity to MAX] it was inadvertent you should pick a different example pronto". The great man did at least reply to me, which he's never done before, but only in variants of "la la la not listening". Git.

ajay

one would have to stretch to an absurd degree to find anything defamatory in the original piece.

Agree. The review is a pretty nasty piece of work but it would be tricky (though not impossible) to argue that it's actually defamatory. He writes paragraphs one to five about Famous Racists Of The 20th Century, and then in para six suddenly starts talking about Niall Ferguson.

I don't know if it would be defamatory for me to write five paragraphs about, say, Fred and Rose West, Ian Brady, Myra Hindley and Harold Shipman, and then start para six "The parents of Madeleine McCann also grew up in a medium-sized English town..."

Martin Wisse

Well, it's pretty standard for an LRB piece to start with an appropriate overview of the literature on the subject in question and showing that Fergie's work stands in a not so proud tradition of defence of the white man's burden is legitamite if true.

ajay

Martin: which would imply that Ferguson is correct, and the LRB piece was in fact libellous... wouldn't it? If Mishra thinks that "the literature on the subject in question" consists of lots of other books by racists, then he is making a fairly clear if not explicit assertion that Ferguson, like Stoddard et al, is a racist.

CMcM

Opening a book review with a survey of the literature is certainly a common tactic, but not universal whether in the LRB or anywhere else. I think the very maximum Mishra could be accused of in his opening was paint a picture on the lines of, 'this is how it used to be done but that's so old fashioned now - let's look at how it is done today, which is rather different'.

I'd bow to m'learned friends on the subject of whether the article was libellous but, as a lay person, I struggle to see how it is obviously so.

Phil

I don't know how libel law works wrt book reviews, but it seems to me that "Phil Edwards is a monarchist" is a very different statement from "the book by Phil Edwards under review expresses monarchist arguments, as we can see from the following quotes" - and that if I tried to sue for statement 2 I'd be laughed out of court. Mishra's review was fairly ad hom, but I think it was still much closer to 2 than 1. And Ferguson's comments on the actual racism charge are very thin stuff indeed - the argument seems to be that Mishra's denial proves him guilty, or something.

ajay

Phil: not a lawyer either, but is there really that much clear water, legally or logically, between "Phil is a monarchist" and "Phil has written a book expressing monarchist arguments"?

I'd be comfortable saying that Frances Smith, hypothetical author of "War is a Bad Idea", "Why Pacifism is Great" and "Fighting Wars: Still Not Very Smart Or Moral" is a pacifist.

Yes, if you tried to sue you'd be laughed out of court but that's probably because saying someone is a monarchist isn't really defamatory.

ajay

What Mishra actually seems to have said is more like "Ferguson has written a book expressing the same unpleasant beliefs about empire that were expressed in a lot of books by racists", which is a slightly looser link.

Dan Hardie

Expression of opinion isn't libellous under English common law, so long as it isn't a disguised accusation of fact. My guess is that a court would decide that Mishra had managed the former, not the latter.

I have to say I'm one of those who is not terribly impressed by Mishra's original review, nor by his 'look over there!' tactics in his subsequent contributions to the LRB. The best way to show Ferguson up for the charlatan he is would be to stay calm and stick to the facts. But I think it comes to court I think Ferguson will lose.

Quite possibly it won't come to court, however. The LRB does not have the financial resources to risk losing. And even if Wilmers is loaded, a loss in a libel action can quite easily lumber you with an immediate need for upwards of £200,000. Even a successful defence could mean a six-figure bill, because judges don't always make unsuccessful litigants pay defence costs. I think Mishra went too far in what he said and Ferguson is acting like a nasty bully in his response.

My current prediction is that Ferguson gets a printed apology and payment of his current legal costs (ie for a few consultations with an expensive solicitor), because the LRB won't risk getting taken to the cleaners.

Charlie W

Racists are unpleasant, sure, and you'd do well to avoid being called one, but is a false accusation of racism actually defamatory in law? I'd count Mishra's review as an act of social shaming.

Richard J

, but is a false accusation of racism actually defamatory in law

Well, Hays plc recently successfully sued an employee for calling them racist, but then again, for an employer to be racist is an illegal act.

Looking at the Morrisey judgements to date, the alleged libel is precisely that, and the defense haven't tried to strike it out on grounds of no case to answer.

Ahah...

http://www.mirror.co.uk/news/top-stories/2011/05/28/model-gets-70k-after-racist-libel-115875-23163006/

(FYI, Dan's said it better than I could - it seems Mishra was trying to be too clever by half, and it's backfired.)

Charlie W

To try to answer my own question in terms of what's right and good, as opposed to what there's legal precedent for, since IANAL, I suppose that if someone (a) accused you of something that would do you harm, owing to reputational damage, and (b) misrepresented facts in the accusation, then you'd have been wronged. So Morrissey can rightly sue NME not because they called him a racist and he isn't, but because they misrepresented what he said in a way that harms his reputation owing to social non-acceptance of racism. And whether he wins or loses, Morrissey may still be a racist. This echoes what Dan said above.

CMcM

The LRB does not have the financial resources to risk losing.

According to Wikipedia, "In January 2010 it was reported that the magazine was £27 million pounds in debt to the Wilmers family trust. "It’s family money and the debts have been rising for many years,” Wilmers said. “But I really just look after the commas.”

I suspect that means a little local difficulty like a legal challenge from Young Lochinvar can be dealt with if necessary. At the very least, Ferguson would be taking a bit of a punt if he assumed that the prospective costs alone are going to scare the mag off....

ajay

is a false accusation of racism actually defamatory in law?

The closest case seems to be Telnikoff v. Matusevich 1991, in which it seemed to be accepted that being called a racist could be defamatory (£240k's worth of defamatory). But the law may have changed since then (Defamation Act 1996). IANAL.

Charlie W

Richard: that's a verdict of an Irish court, btw.

Richard J

The auditors' statement on 'going concern' in LRB Limited's accounts is a thing of carefully drafted beauty.

(It's up to £41.6m as at March 2010, btw, and growing at c. £4m pa. So, what, pushing £50m now?)

(Other interesting things:- John Lanchester and Andrew O'Hagen each made about £40k for their articles.)

Richard J

Charlie - fair point...

CMcM

Richard J: I'm sure MKW's 'concern with the commas' extends to taking a full part in suggesting wordings for auditors' statements...up to them to accept or reject of course

But my point remains: if you can be that carefree with 'family money', then why be scared of a day in Court?

Dan Hardie

There is too much confusion about the principles of libel law here. I've worked as a sub-editor and I have had to have a working knowledge of this stuff.

To win a libel action, a plaintiff has to prove that something was presented as a statement of fact and not an expression of opinion, and that it was defamatory- ie it would lower a person's reputation in the eyes of most reasonable people if it were believed.

The defendant can win the case if he can prove that what he said was either an expression of opinion, or not defamatory.

Additionally, the defendant can win the case if he can prove that what he said was true, but the onus is on him to establish the truth of the statement. The plaintiff in a libel case doesn't have to prove that the statement he is objecting to was untrue.*

Any accusation of racism is defamatory, but to be libellous it must be proved to be either an expression of opinion, or true.

'John is racist in his personal life' is clearly a statement of fact, and defamatory, so you'd better be able to prove it was also true.

'John is a monarchist' is clearly a statement of fact, but only defamatory in very particular circumstances (eg John is the paid chief executive of an anti-monarchist campaign, so he's acting in bad faith).

'I find John's views as disgusting as Hitler's' is a statement of opinion, and so not libellous. You can find any number of examples of this on the web, and they don't lead to libel suits, because in the eyes of the law they aren't libellous.

What we're talking about is a review saying, in effect, 'John- or Niall- has, in my opinion, views which are rather similar to those of a number of racist writers from the 1920s. Also, his views are as disgusting to me as the views of those writers.'

Is that an expression of opinion or an assertion of fact, and if it's a expression of fact is it true? My take would be that the second statement is certainly an expression of opinion, and the first arguably is, in which case it's not libellous. But as I say, Wilmers may not want to bet a court case on that.

* The English courts have also acknowledged the possibility of a 'Reynolds defence', whereby the accusations are admitted to be untrue, but there were good reasons to believe that they were true, and all reasonable measures were taken to check them. However, there's never been a successful Reynolds defence to date.

Dan Hardie

I am a dolt. Erratum to the above post:

'Any accusation of racism is defamatory, and is libellous unless it can be proved to be either an expression of opinion, or true.'

ajay

However, there's never been a successful Reynolds defence to date.

Jameel v. Wall Street Journal Europe?

Dan Hardie

'Jameel v. Wall Street Journal Europe?'

Yes, you're right. Very interesting, since the judges modified the Reynolds principles from the rigid way they'd been interpreted before. Very useful to know.

I'm tempted to ask for a rebate on my media law course, taken c. May 2009, since they did definitely tell us that there had never been a successful Reynolds defence, but then I should have checked for myself...

ajay

Jameel is one of very few, though, so it's generally still not a good idea to rely on a Reynolds defence.

ejh

I will persecute him until he does

Quite a turn of phrase our bully has.

ejh

I can't see the LRB getting away without some kind of clarification, if only because Ferguson isn't going to back down and can afford to fight and lose an extremely expensive court case. And of course for him, a clarification with no element of grovelling isn't likely to do an adequate job.

Charlie W

"'John is racist in his personal life' is clearly a statement of fact, and defamatory, so you'd better be able to prove it was also true."

I don't see this. 'John has discriminated in favour of x on racial grounds', perhaps. '... is racist' is incredibly vague, no?

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